HONG KONG LEGISLATIVE COUNCIL
28 June 1989 香港立法局. 一九八九年六月二十八日
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enables a party to an arbitration arising from, for example, a building contract to be represented by any expert in that field irrespective of whether he is a civil engineer, architect, surveyor or lawyer.
However, doubt has been cast on the common law position in Hong Kong as a result of sections 44, 45 and 47 of the Legal Practitioners Ordinance. Section 44 provides that any unqualified person acting as a barrister shall be guilty of an offence. Section 45 provides that no unqualified person shall act as a solicitor, while section 47 provides that no unqualified person shall prepare certain legal documents.
The question of what effect these provisions may have in relation to arbitration proceedings has led to a number of widely different opinions from lawyers. Some argue that only solicitors and barristers admitted in Hong Kong have a right of audience. Others consider that the provisions do not prevent any person from appearing in arbitration proceedings. More recently an eminent lawyer has expressed the considered view that, by virtue of these three sections of the Legal Practitioners Ordinance, non-lawyers, United Kingdom qualified solicitors and some lawyers from other jurisdictions, for example America, may appear in arbitrations but English barristers and some lawyers from jurisdictions such as Australia and New Zealand, may not.
This illustrates the confusion which exists. The situation is clearly unsatisfactory. There are now strong indications that the uncertainty is constituting a substantial impediment to the development of Hong Kong as an international centre for arbitrations. This is because contracting parties are unwilling to nominate Hong Kong as a venue for arbitrations if they cannot be sure that they will be able to use the advocate of their choice.
The Bill, if enacted, will remove that uncertainty by making clear that sections 44, 45 and 47 of the Legal Practitioners Ordinance do not apply to arbitration proceedings and that parties to such proceedings are not restricted as to who may represent them and this position is in line with the practice in other major centres of arbitration. The Bar Association, the Law Society and the Hong Kong Arbitration Centre support the proposal in this Bill.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
No comments yet.
Private notes are available after approval.