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
of claim. If the debtor does not acknowledge service, the creditor can enter default judgment; if it does, the creditor usually applies for summary judgment (Order 14 of the RHC) with a supporting affidavit exhibiting the foreign judgment. The court decides whether there is a bona fide defence to enforcement; the underlying dispute would not be retried. 3.5 Costs and Time Taken to Enforce Foreign Judgments An uncontested statutory registration typically takes about four to six months; one that is contested takes longer, depending on the court’s diary. An uncontest - ed common-law action typically takes around six to twelve months to default or summary judgment, and longer if a real fight develops. Because each route carries its own limitation period, a judgment creditor should act promptly in taking out relevant applica - tions. Enforcement of the registered or recognised judgment then follows the domestic pattern (see 2. Domestic Judgments ): garnishee proceedings are quickest where a bank account is known; an exami - nation order is the sensible first move where the judgment debtor’s assets are unclear, and a statutory demand could exert commercial pressure. 3.6 Challenging Enforcement of Foreign Judgments The grounds for resisting enforcement are narrow, and the court does not retry the underlying dispute. What grounds are available depends on the route by which enforcement is sought, since each statutory scheme sets out its own grounds and the common law has its own. The main grounds are outlined below; in each case they are examples rather than a complete list, and the applicable ordinance or the common law should be consulted for the full grounds and their precise scope. • FJREO. The grounds on which registration may be set aside include that the judgment was obtained by fraud, that the original court lacked jurisdiction, that the judgment debtor did not receive notice in time to defend and did not appear, that enforce - ment would be contrary to public policy, that the judgment had been wholly satisfied or could not be enforced in the country of origin, and that the reg -
istration requirements were not met, among others specified in the Ordinance. • Mainland regimes (MJREO and MJCCMREO). Each ordinance sets out its own grounds for refusing or setting aside enforcement. These include, among others, want of proper notice or a fair opportunity to be heard, fraud, a conflicting Hong Kong judg - ment, public policy, and grounds specific to the Mainland context – such as the judgment having been reversed or set aside on appeal or re-trial, or the choice-of-court agreement being invalid (for the MJREO). The two ordinances differ in detail, so the grounds must be checked against the regime that applies to the particular judgment. • Common law. Recognition can be resisted on established common-law grounds – principally that the judgment was obtained by fraud, that enforce - ment would be contrary to public policy or natural justice, or that the judgment conflicts with a prior judgment between the same parties. Some grounds – notably fraud, public policy and want of sufficient notice to defend and thus did not appear in the original proceedings – appear across more than one route, but their precise scope and wording differ. Because the aforementioned grounds are illustrative only, the applicable ordinance or the common law should be consulted for the complete grounds in any given case. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Winning an arbitration is not the same as being paid. If the award debtor does not pay, the award creditor can apply to the Hong Kong court for leave in order to enforce the award. In Hong Kong, enforcement of an arbitral award may be by the summary procedure provided under the rel - evant Arbitration Ordinance, or by way of a common- law action on the award. The first is the summary statutory procedure. The Arbitration Ordinance, Cap 609 (the AO) came into force on 1 June 2011. It follows the United Nations
204 CHAMBERS.COM
Powered by FlippingBook