Weixia Gu on the Recognition and Enforcement of Judgments in Civil and Commercial Matters in China (new book chapter)

"China"
Weixia Gu
in Anselmo Reyes (ed.), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart Publishing 2019)
Chapter 2, pp. 31-50

Introduction: The unparalleled economic growth of the People's Republic of China has resulted in a paradigm shift in its legal regime.  Once a closed market to the world, China now faces an unprecedented surge of international business and movement of global capital into its domestic market in light of its immense economic growth in the past 40 years.  As a result of this growth, the internationalism of business in China requires the domestic courts to accommodate private international law practices such as allowing foreign judgments to be recognized and enforced in the domestic courts: a clear indicator of globalization and the development of China's economy. 

     An important step China has taken in the past few years is to improve efficiency in recognizing and enforcing foreign judgments.  Specifically, the salient shift to a more liberal application of the reciprocity principle, the signing of the 2005 Hague Choice of Court Convention (2005 Hague Convention) and the growing number of bilateral treaties on judicial assistance are clear indicators of China's recent willingness to improve commercial certainty for the parties involved, to promote fairness for both domestic and foreign litigants, and to ensure the global movement of judgments, resulting in increased investor confidence and further economic growth in China.

     This chapter will analyse current theory and practice with respect to the recognition and enforcement of foreign civil and commercial judgments in China.  There are three regimes that will be analysed: (1) the existing Sino-bilateral judicial assistance treaties on civil and commercial matters; (2) in the absence of a bilateral treaty, the application by the Chinese courts of the principle of 'reciprocity' while taking account of procedural and substantive concerns specific to China; and (3) the potential impact of the 2005 Hague Convention signed by the Chinese government in September 2017...

Daisy Cheung on Mental Health Law in Hong Kong: The Civil Context (HKLJ)

"Mental Health Law in Hong Kong: The Civil Context"
Daisy Cheung
Hong Kong Law Journal
Vol. 48, Part 2 of 2018, pp 461-484

Abstract: This article takes the first step in addressing the paucity of research on mental health law in Hong Kong, in particular the civil context. It argues that the state of civil mental health law in Hong Kong is in dire need of reform due to its archaic nature and insufficient protection of patients’ rights. This article focuses in particular on the following four key areas: (1) compulsory mental health admission and treatment, (2) compulsory mental health treatment in the community, (3) voluntary and informal mental health patients and (4) the concept of mental capacity. It is argued that the law needs to be reformed in each of these areas to ensure that it reflects both modern trends of mental health law, as well as Hong Kong’s commitment to the protection of fundamental human rights.

New Book by Shahla Ali: Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice (Edward Elgar)

Court Mediation Reform Efficiency, Confidence and Perceptions of Justice
Shahla Ali
Edward Elgar
March 2018, 296 pages

Description: As judiciaries advance, exploring how court mediation programs can provide opportunities for party-directed reconciliation whilst ensuring access to formal legal channels requires careful investigation. Court Mediation Reform explores comparative empirical findings in order to examine the association between court mediation structure and perceptions of justice, efficiency and confidence in courts.

Recommendations:     

‘Shahla Ali's work is an innovative meta-analysis of the trends in the institutionalization of mediation at the macro level. It has an ambitious approach that had not been attempted yet, and paves the way for other future research, as well as providing guidance to policy makers and professionals.’ – Luigi Cominelli, The University of Milan, Italy

‘Professor Shahla Ali has performed a valuable service for conflict resolution policy makers around the world. Providing diverse and mixed data reports of the uptake and resistance to court (and some private) mediation programs in ten different legal systems, she artfully surveys important legal, social and cultural differences in the uses and effectiveness of voluntary and mandatory mediation programmes. While some seek efficiency, others seek efficacy, through party-tailored solutions or regional integration dispute resolution schemes. Different programme motivations (and the varied role of lawyers) provide variation, not uniformity, in the use of mediation to resolve civil, family, labour and commercial disputes. A must-read for any dispute system designer, or court administrator or mediator.’ – Carrie Menkel-Meadow, University of California, Irvine and Georgetown University Law Center, US

‘Professor Ali's book offers the most comprehensive, qualitative study and insights on Global Court Mediation I have encountered. It should be in the hands of every court in the world.’ – Judge Dorothy Nelson, United States Court of Appeals, 9th Circuit

New Book by Wilkinson, Cheung & Meggitt: Civil Procedure in Hong Kong (6th edition) (LexisNexis)

Civil Procedure in Hong Kong (6th edition)
Michael Wilkinson, Eric TM Cheung & Gary Meggitt
LexisNexis
December 2017,

Description: Civil Procedure in Hong Kong Sixth Edition provides practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong. The Civil Justice Reform has now been effective for more than 8 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions.

     This sixth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms, including:

• The use of translated documents in proceedings vide case development on High Court Civil Procedure (Use of Language) Rules r 5(5)(a)

• Rules on service and forum in lieu with Hong Kong’s role in a developing global economy

• Updates to procedural rules since previous edition eg vide L.N. 175 of 2015, L.N. 3 of 2016

New Book: Civil Procedure in Hong Kong: A Guide to the Main Principles (4th edn) (Dave Lau)

Civil Procedure in Hong Kong: A Guide to the Main Principles (Fourth Edition)
Dave Lau
Sweet & Maxwell
August 2017

Description: Civil Procedure in Hong Kong: A Guide to the Main Principles, Fourth Edition, a popular text with practitioners, has developed a reputation as being a user-friendly, simply written guide to the main principles of civil procedure.

     The new edition covers important changes in relevant areas, including the recent abolition of the “as of right” route of appeal to the CFA. A few years have passed since the coming into effect of the Civil Justice Reform (CJR). The text elaborates on various points where it would be helpful for practitioners to have more of an explanation and/or a flavour of the Court’s general approach now.

Eric Cheung Comments on Hong Kong Suit Against Chinese Mayor of Jinan (SCMP)

"China Shanshui Cement subsidiaries sue mainland Chinese mayor and deputy for conspiracy in Hong Kong court"
Chris Lau and Sijia Jiang
South China Morning Post
8 March 2016

The mayor of Jinan (濟南) and his deputy from the northern province of Shandong (山東) have been sued in a Hong Kong court over an alleged conspiracy relating to ­assets belonging to the subsidiaries of a debt-laden mainland ­cement company. But the lack of local ties from the parties might suggest the rare case could end up being a publicity stunt rather than a legitimate legal battle.

     China Pioneer Cement (Hong Kong) Company and Shandong Shanshui Cement Group Company – subsidiaries of the Hong Kong-listed China Shanshui ­Cement Group – are suing Jinan mayor Yang Luyu and his deputy Su Shuwei over an alleged conspiracy with their former directors, according to a court writ filed on Friday.

     This essentially means that the plaintiffs are suing two mainland officials for allegations which took place on the mainland. One of the plaintiffs, Shandong Cement, is also a company incorporated across the border.

     This raised questions as to how court documents could be served and court decisions enforced across two jurisdictions, a lawyer and legal scholar noted...

     But in this case, the documents would have to be served to mainland residents.

     University of Hong Kong legal scholar Eric Cheung Tat-ming said the plaintiffs could either use an official channel, via the Hong Kong courts or assign their own mainland lawyers.

     The former, as stated in the Basic Law, involves the plaintiffs handing the documents over to the Hong Kong courts, which would then pass them to mainland courts for service .

     Cheung, who said the system was reliable, added: “I am not sure whether it would be another story serving [documents] to a mayor.”

     Cheung also said the plaintiffs had first to satisfy the local courts under High Court rules, before ­accessing the channel... Click here to read the full article.

New Book: 5th Edition of A Guide to Civil Procedure in Hong Kong

A Guide to Civil Procedure in Hong Kong, 5th edition
LexixNexis
December 2014
Michael Wilkinson, Eric Cheung, Gary Meggitt

Description: The principal aim of this book is to provide practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong.  The Civil Justice Reform has now been effective for more than 5 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The jury is, however, still out as to whether the Reforms have significantly achieved their objectives.  The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions. The fifth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms. In fact, there is a considerable body of important decisions continuously emanating from the courts which renders the task of the civil litigation practitioner ever more demanding.

New Edition of Lau's Civil Procedure in Hong Kong

Civil Procedure in Hong Kong: A Guide to Main Principles, 3rd Edition

Dave Lau

Sweet & Maxwell

Description: Civil Procedure in Hong Kong: A Guide to the Main Principles, 3rd Edition is a popular text with students and practitioners, has developed a reputation as being user‐friendly, simply written guide to the main principles of civil procedure. More than five years have passed since the coming into effect of the Civil Justice Reform (CJR). The Court has given much guidance on many aspects of the new rules, including in the last couple of years or so where there have been more appellate decisions. Important developments, updated case law and refinements include: the Court of Final Appeal’s restatement of the law on dismissal of want of prosecution; the large body of post CJR‐case law which has developed; a substantial amount of guidance issued by the Courts on the new CJR rules; many parts of the existing text have also been revised or refined, in order to provide clearer or expanded explanations; more examples from recent cases have also been included; increased emphasis on the Court’s post‐CJR approach; new Companies Ordinance provisions.