CONFIDENTIAL
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recognition and enforcement of civil judgements. Following a trial period this full blown agreement would then serve as a basis for national legislation to be included in Annex III of the HKSAR Basic Law. Mr. Zhang stated the court has no firm view at present on the institutional structure of judicial assistance between the P.R.C. and Hong Kong: it could be simply court to court or it could involve other government bodies.
17.
As Mr. Zhang had already raised the issue of judicial bias or 'local protectionism' in the Chinese courts, I was able to comment that some people in Hong Kong were concerned that mutual enforcement would result in Hong Kong being compelled to enforce unfair judgements. Mr. Zhang replied that an agreement for mutual enforcement could include special provisions to address this concern, such as a review or vetting procedure. He then went on to say that the
court would like to begin a dialogue on the subject of judicial assistance with the Hong Kong Supreme Court or the Attorney General's Chambers. He suggested that such a dialogue could be informal and initially restricted to exchanging information on both judicial systems.
V. Recommendation
18.
In my opinion there are good reasons for a positive response to this proposal from the Supreme People's Court. The court and other elements of the Chinese government are beginning to consider the problem of judicial assistance between the rest of China and the SAR. Although it appears that the court has not yet come to a conclusion on how these procedures should work in practice, there is a danger that a decision will eventually be reached which is detrimental to Hong Kong, but which could have been avoided through discussion.
19.
There is of course a risk that any dialogue with the Supreme People's Court on judicial assistance, however general or informal, will inevitably result in irresistible pressures to negotiate an agreement on recognition and enforcement. Moreover, discussion on civil law matters may also open the way to unwanted discussions on criminal law cooperation. However, it is also clear that Chinese thinking has yet to harden on a specific course of action regarding mutual recognition and enforcement of civil judgements. Hong Kong Government therefore been presented with an opportunity to influence the development of the issue, which is better than waiting to negotiate with the Chinese government after it has reached a decision.
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