TNAG-1949-FCO40-2777-Future-of-Hong-Kong-First-Pacific-Bank-Limited-1989 — Page 9

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Where the property is situate in Hong Kong, as

agreed by the FCO, there can be no question of extra-territoriality irrespective of whether or not the law of some other country applies to that the property in some way. Where the property is situate outside Hong Kong and is governed by the law of some other jurisdiction, then the vesting provisions of the ordinance are specifically excluded by the revised version and, again, no extra-territoriality is involved.

That only leaves the situation where the property is situate outside Hong Kong but is in some way governed by Hong Kong law. In those circumstances, given the normal rule that the jurisdiction in which the property is situate would prevail unless there is specific agreement to the contrary then, if that property is in fact governed by Hong Kong law, it can only be by specific agreement of the parties interested in that property. In those circumstances, it seems to me that there is no question of extra-territoriality as in those circumstances the Hong Kong government is not seeking to impose legislation on another jurisdiction but is simply providing legislation by reference to which parties in other jurisdictions have already specifically agreed to act in accordance with.

2.

"

I would add that

(a) the Standard Chartered Asia Limited Ordinance

(Cap. 1136) contains a provision similar to clause 5(2) (see s. 3(3)); and

(b)

other Hong Kong banking Ordinances provide for the transfer of property subject to Hong Kong law without limitation as to the situs of the property (see Royal Bank of Scotland Ordinance (Cap. 1138, s. 4); Deutsche Bank (Merger) Ordinance (Cap. 1142, s. 4); Rainier International Bank (Transfer of Hong Kong

Undertaking) Ordinance (Cap. 1144, ss. 4 & 2(1)).

I believe that each of these Ordinance was, prior to enactment, approved by the FCO.

3.

The draft Bill enclosed contains other minor differences from the draft I enclosed with my letter to you dated 29 August 1989. I have highlighted the amendments.

4.

Grateful if you would confirm whether the Bill may now be proceeded with without further reference to the Secretary of State.

c.c. LA(MA)

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Yours sincerely,

PAllcork

(R. Allcock )

P.T.O.