TNAG-2574-FCO40-3760-Future-of-Hong-Kong-reciprocal-enforcement-of-civil-judgment-1992 — Page 67

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CONFIDENTIAL

At present, Hong Kong judgments can be enforced -

(a)

in a number of Commonwealth jurisdictions under a Commonwealth scheme;

(b)

in countries in respect of which UK bilateral treaties have been applied to Hong Kong; and

(c)

XCX(92)58

in many common law jurisdictions.

However, no adequate system of enforcement exists in relation to other jurisdictions e.g. most civil law jurisdictions. Where a judgment creditor wishes to pursue the assets of the debtor in such a jurisdiction, he must start new proceedings in that place and try to obtain a second judgment. This is costly, time-consuming and inconvenient.

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A further problem is that the Commonwealth scheme and UK

bilateral agreements cannot continue in force after 1997.

Enforcement of foreign judgments in Hong Kong

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Civil judgments obtained in any other jurisdiction may be enforced in Hong Kong, either under common law principles or, if the jurisdiction has been designated for the purpose, under local legislation. As a result, a person who obtains a judgment elsewhere can enforce it with relative ease in Hong Kong, but the reverse is often not the case. Local businessmen are therefore at a disadvantage.

Need for bilateral agreements

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The best way to overcome these problems is for Hong Kong to enter into reciprocal arrangements with other countries. Under those arrangements, a judgment obtained in one country could be registered in the other country and then enforced as if it had been obtained there.

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Reciprocal arrangements could, in theory, be based merely on assurances of reciprocity, backed up by legislation in both jurisdictions. However, such assurances would not provide certainty or consistency, or have any formal legal status. Reciprocal arrangements based on bilateral agreements are therefore recommended, as they would create international

Executive Council