HONG KONG SAR, CHINA Law and Practice Contributed by: Eric H. H. Chow, Michael Cheng, Stephanie Wong and June Wong, C L Chow and Macksion Chan
• given by a court with competent jurisdiction (in the Hong Kong conflict-of-laws sense); • reached consistently with natural justice; and • not contrary to public policy; and • the foreign proceedings did not breach a jurisdic - tion or arbitration agreement between the parties, unless the defendant submitted to the foreign court. 3.3 Categories of Foreign Judgments Not Enforced Some judgments fall outside every route. Judgments that are not final or (for the Mainland) not effective cannot be enforced, and neither can judgments that have been wholly satisfied. Sums for taxes or similar charges, fines or penalties are excluded under both the statutory schemes and the common law. On final - ity, the Mainland’s “trial supervision” system does not by itself defeat a judgment’s finality, although evidence of substantive grounds in support of an order for re- trial may do so. Beyond those exclusions in common, each route has its own limits. • FJREO and common law. Only monetary judg - ments qualify. Non-monetary judgments, such as foreign orders for specific performance, injunctions or declarations, cannot be registered under the FJREO or sued upon at common law. • MJREO. Non-monetary judgments, and judgments not concerning commercial contracts, fall outside the scope of MJREO; so do judgments where the parties did not submit to the exclusive jurisdiction of the Mainland courts. • MJCCMREO. Judgments within the “excluded judgment” list in Section 5 cannot be registered, among them judgments concerning certain mat - rimonial and family matters (which fall under Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, Cap 639), the administration of estates and probate, insolvency and winding up, certain arbitration-related matters, judgments under the MJREO and certain intellectual property and mari - time matters. Some remedies are also excluded, such as awards other than monetary damages in intellectual property infringement and competition
cases, and rulings on the validity, establishment or subsistence of a specified intellectual property right. 3.4 Process of Enforcing Foreign Judgments Statutory Registration (FJREO, MJREO and MJCCMREO) Registration begins with an ex parte application, ie, made without notice to the judgment debtor, to the Court of First Instance, supported by a draft order and a supporting affidavit exhibiting the judgment and showing that the registration conditions are met. The judgment creditor owes a continuing duty of full and frank disclosure throughout, and the court may direct that the application be made by originat - ing summons. For Mainland judgments, Order 71A of RHC and Mainland Judgments in Civil and Com - mercial Matters (Reciprocal Enforcement) Rules (Cap 645A) respectively sets out the registration procedure under MJREO and MJCCMREO in detail: Order 71A stipulates that the supporting affidavit must exhibit the judgment, any relevant choice-of-court agreement, and a certificate from the original court confirming that the judgment is final and enforceable in Mainland China. Cap 645A states that the supporting affidavit must, among other things, exhibit the judgment and a certificate from the original court confirming that the judgment is one in a civil or commercial matter that is effective in Mainland China. If the registration requirements are satisfied, the court makes a registration order; any foreign-currency sum is converted into Hong Kong dollars as at the regis - tration date. The creditor must then serve notice of registration on the judgment debtor, who has a set period to apply to set the registration aside – under the MJCCMREO, 14 days from service (Section 21), subject to any different period the court specifies. The registered judgment cannot be enforced until that period expires or any set-aside application is deter - mined. Once registration stands, the judgment takes effect as if the Court of First Instance had given it on
the registration date. Common Law Action
At common law, the judgment creditor issues a Writ of Summons in the Court of First Instance, suing on the judgment as a debt, endorsed with a short statement
203 CHAMBERS.COM
Powered by FlippingBook