JUSTICE IN FOCUS ISSUE ONE 2021
Online Version Features
Features Message from the Hong Kong Legal Week 2020 01 Hong Kong Legal Week 2020 Secretary for Justice Basic Law 30th Anniversary Legal Summit – Back to Basics 04 Why Hong Kong Series: “Why Hong Kong is Irreplaceable” Webinar 07 Successfully Held Welcome to our 3rd issue of Justice in Focus. Why Hong Kong Series: “Why Arbitrate in Hong Kong” 08 There is much to celebrate and share about the past Secondment Arrangements with International Organisations for Hong Kong 08 six months, especially following a very successful Lawyers – HCCH Hong Kong Legal Week 2020. As the Department Mutual Legal Cooperation with the Mainland 09 of Justice’s annual flagship event, Hong Kong Legal Updates on Other Developments 10 Week 2020 saw an attendance of over 48,000 online viewers during the week’s livestreamed What's New? webinars and events. Happening at the same time LawTech Developments 11 was the official launch of the Hong Kong Legal Hub Closer Legal Connections to the Greater Bay Area and the “Vision 2030 for Rule of Law” initiative, both New Legislation for Fighting COVID-19 12 of which are landmark developments for further Improving the HKSAR’s Electoral System 13 establishing Hong Kong’s status as an international Global and Mainland Connections legal, deal-making and dispute resolution centre. Department of Justice’s Global and Mainland Connections Map 14 In this Issue, we will also cover recent global and The Department Participates in a Series of Events on Online Dispute Resolution 16 Mainland-based events that the Department of BIMCO adds Hong Kong to new Law and Arbitration Clause 16 Justice co-organised and participated in, the latest Virtual Pre-intersessional Meeting of UNCITRAL Working Group III – Use of 17 efforts to promote education and awareness of Mediation in ISDS ▲ The officiating guests, the Chief Executive, Mrs Carrie Lam (centre); the then Chief Justice of the Court of Final Appeal, Mr Geoffrey Ma (4th L); Secretary for Justice, Ms Teresa Cheng (4th R); and Commissioner of the Independent Commission Against Corruption, Mr Simon Peh (3rd R), pictured at the opening ceremony with the Deputy Director of the Liaison Office of the the rule of law in the community, as well as related Opening of the DoJ Project Office for Collaboration with UNCITRAL, and 1st 17 Central People's Government (CPG) in the HKSAR, Mr He Jing (3rd L); Deputy Head of the Office for Safeguarding National Security of the CPG in the HKSAR, Mr Li Jiangzhou (2nd L); Deputy Commissioner of the Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the HKSAR, Mr Zhao Jiankai (1st L); the then Chief Secretary training for legal professionals. We hope you will Meeting of iGLIP on ODR for Administration, Mr Matthew Cheung (2nd R); and Financial Secretary, Mr Paul Chan (1st R) enjoy reading this first issue of Justice in Focus for The Hague Academy of International Law’s 2021 Hong Kong Programme 18 Hong Kong Legal Week 2020, which coincided with the official housed. By consolidating top-notch local, regional and international 2021. Secretary for Justice Speaks at the Inaugural Symposium on Maritime 18 Cooperation and Ocean Governance opening of the Hong Kong Legal Hub and launch of the “Vision legal talents at a premier venue, the legal hub is poised to attract Annual Colloquium 2020 – Challenging an Interdependent World: Sanctions 19 2030 for Rule of Law” initiative, was held from 2 to 6 November to global legal and dispute resolution talents to the city, while providing a – Principles of Non-interference mark a memorable milestone in the Department of Justice’s work on platform of legal services in support of business and economic growth Editorial Board Memorandum of Understanding for Contribution to APEC 20 promoting the city as an international hub for legal, deal-making and in the city and beyond. ● Angie IP Civil Division APEC Economic Committee 1st Plenary Meeting 20 dispute resolution services. The official launch of the “Vision 2030” initiative was another ● Annie LI Constitutional and Policy Affairs Contracts for the International Sale of Goods Conference and Seminar 21 A group of distinguished guests, including the Chief Executive, highlight of the five-day event, one that articulated the HKSAR Division Mrs Carrie Lam; the then Chief Justice of the Court of Final Appeal, Government’s commitment to upholding the rule of law. Formulated ● Elaine NG Law Drafting Division Community Connections Mr Geoffrey Ma; and Commissioner of the ICAC, Mr Simon Peh, with the needs of the local community and the national development ● Jasmin CHEUNG Public Relations and Information Unit Teacher Training by Endeavour Education Centre 22 (Board Chairperson) were invited to officiate at the opening ceremony conducted in the strategy in mind, the initiative sought to promote proper understanding Premiere of the Rule of Law through Drama 22 ● June WONG Prosecutions Division Former French Mission Building, where the Hong Kong Legal Hub is and recognition of the rule of law through professional exchanges, Pilot Scheme on the Rule of Law Education for Secondary School Students 22 ● Katie KWONG International Law Division research and capacity building with stakeholders, including youths, ● Liz WONG Administration and Development e-Resources for Rule of Law and Basic Law Launched 22 legal practitioners and academics. Division (Board Secretary) Update on AEF 2.0 Matching Grant for Skills Upgrading 23 In the pipeline are various projects under the banner “Engagement, ● Phoebe SUEN Inclusive Dispute Avoidance and School Mediation Seminar 23 Resolution Office Empowerment and Enrichment” which are targeted at the community, Professional Development youths and professionals respectively. These projects aim to Special thanks to: National Studies Programme for Government Lawyers 23 strengthen the proper understanding and practice of the rule of law, ● Carman CHAU Information Technology Management Courses on WTO Dispute Settlement and International Investment Law 23 raise awareness of a law-abiding society and equip youths with the Unit Workshops on the Procurement of Public Works Contracts 23 proper knowledge of the rule of law. ● Elizabeth GRINDEY Law Drafting Division An annual flagship event of the Department of Justice, Hong ● General Translation Administration and Development Useful Information Kong Legal Week 2020 featured a series of webinars and events that Unit Division ▲The Chief Executive, Mrs Carrie Lam (2nd L); the then Chief Justice of the Court of ● Manuel NG Law Drafting Division (Cover Design) Notable Judgments in Civil Cases 24 Final Appeal, Mr Geoffrey Ma (1st L); Secretary for Justice, Ms Teresa Cheng (2nd R) and were streamed live for the first time, reaching about 48,000 viewers in Commissioner of the Independent Commission Against Corruption, Mr Simon Peh (1st R), ● Olivia KONG Public Relations and Information Unit Notable Judgments in Criminal Cases 25 officiating at the launch of the "Vision 2030 for Rule of Law" the face of challenges posed by the COVID-19 pandemic.
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Inaugural Rule of Law Congress Second Hong Kong Mediation Lecture
To be held every other year in Hong Kong Legal Week, the The 2nd Hong Kong Mediation Lecture was co-hosted by “Investor-State Mediation at the Tipping Point” during which he Inaugural Rule of Law Congress featured the theme of “Towards the Department of Justice and the global law firm, Herbert Smith assessed the past five years of global dialogue in this area and 2030: A Decade of Action for Rule of Law”, in line with the United Freehills. Chairing this event was the independent international the resulting impact on investor-state mediation knowhow, best Nations’ call for a Decade of Action to achieve the Sustainable mediator and arbitrator Mr Mark Appel who delivered the topic practices, education and training, and institutional mediation rules. Development Goals by 2030. Eminent local and international legal experts from around the world were brought together to exchange Sports Dispute Resolution Conference views on pertinent issues on the rule of law at this event. During the panel discussions, distinguished speakers shared their views on Successfully held online, this three-hour session garnered Secretary for Justice, Ms Teresa Cheng SC, the event discussed strengthening existing legal aid systems to facilitate the pursuit of a wealth of insights and observations from arbitration, mediation the development of sports laws and the interplay between access to justice for all, and addressed the need for further capacity and sports experts, including the Head of Mediation Services sports arbitration and sports mediation. The conference was the of the Court of Arbitration for Sport, Mr Antoine Bonnet, and the Department of Justice’s first step to promote wider use of alternative President of the Sports Federation & Olympic Committee of Hong dispute resolution for resolving sports disputes. Kong, China, Mr Timothy Fok. Following the keynote speech by the
Case Settlement Conference Pilot Scheme ▲ The Secretary for Justice, Ms Teresa Cheng, delivering welcoming remarks at the Inaugural Rule of Law Congress. to be Launched in the District Court of the Judiciary During this half-day event, it was announced that the Case building to raise the ability of judges to discharge their judicial Settlement Conference (CSC) Pilot Scheme would be launched functions through better use of technologies in court. They also at the District Court in January 2021. The CSC Pilot Scheme ▲ Dr Thomas So and the panel speakers Mr Hans van Loon, Mrs Olufunke cited examples of how legal aid had been developed in Myanmar introduces the concept of assisted settlement in the case Adekoya, Mr Robert Pé and Professor Albert Jan van den Berg in discussion via Zoom at the first panel session of the Inaugural Rule of Law Congress and the African continent to ensure equal access to justice. management process. The CSC will be listed before CSC masters who are experienced in mediation. Following its implementation, the court is expected to take a more active approach to understanding ▲
Ms Winnie Tam and and facilitating settlement negotiation. The launch of the CSC Pilot former non-permanent For the court, even if a case has deep political implications, judge of the Court of Scheme reflected the Judiciary’s strong support for wider use of Final Appeal Mr Justice it doesn't mean the court is addressing a political issue, we are Michael Hartmann at the only addressing the legal aspect of the issue. mediation in Hong Kong. second panel session of ▲ the Inaugural Rule of Law Mrs Cecilia Wong (L) and The Honourable Mr Justice Johnson Lam, VP (R) at the Congress Judge Xue Hanqin half-day event introducing the Case Settlement Conference Pilot Scheme Vice President, International Court of Justice
Mediation Conference 2020 14th Annual Generations in Arbitration Conference As a biennial event organised by the Department of Justice for promoting the wider use of mediation, the Mediation Conference Co-organised by the Moot Alumni Association and the their Roles in International Arbitration Proceedings.” Distinguished 2020 drew renowned speakers from Hong Kong and overseas Department of Justice for the first time, the full-day Conference speakers from both civil law and common law backgrounds shared with the theme “Mediate First – More than You Can Imagine” to held various panel sessions on the topic of “Why Arbitration diversified views on the drafting of arbitration agreements and the exchange insights on a range of related legal issues. Also discussed Evergreens Do Not Get Old: A Fresh Look at the Importance of use of expert witness conferencing. were the challenges faced by mediators in the application of the How an Arbitration Agreement is Worded and Expert Witnesses and United Nations Convention on International Settlement Agreements Resulting from Mediation, mediation advocacy and the use of online Striving for absolute uniformity among different legal systems is not the goal as dispute resolution methods. arbitration is beautiful for its diversity and flexibility.
Professor Kun Fan ▲ Mr Simon Chapman (L), Ms Elaine Liu (centre) and Mr C K Kwong (R) at the panel The University of New South Wales on mediation advocacy in the Mediation Conference 2020
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Basic Law 30th Anniversary Legal Summit – Back to Basics
▲ The Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, Mr Zhang Xiao-ming, giving welcoming remarks online
Mrs Carrie Lam, and the Vice-chairperson of the HKSAR Basic Law term growth and development. Former Chairman of the HKSAR Committee of the Standing Committee of the National People’s Basic Law Committee of the NPCSC, Mr Qiao Xiao-yang, together Congress (NPCSC), Mr Zhang Yong, reiterated the importance with the former Deputy Director of the Hong Kong and Macao Affairs of “staying true to the original intention” and “learning the new by Office of the State Council (HKMAO), Mr Feng Wei, explained that the reviewing the old” respectively when they spoke about returning to the various Basic Law provisions support an executive-led system headed basics of the Basic Law. by the Chief Executive who is accountable to the Central People’s A big takeaway from the forum was that we must go back to Government (CPG). basics, remind ourselves of the original intent of the “one country, Deputy Director of the HKMAO, Mr Zhang Xiao-ming, said that two systems” principle and develop an accurate and comprehensive the Basic Law is alive and can be subject to interpretation when understanding of the Basic Law. necessary. Local legal expert Professor Albert Chen added that the NPCSC has the power to interpret any provisions of the Basic Law ▲ The Chief Executive, Mrs Carrie Lam (centre ); former Chairperson of the HKSAR Basic Law Committee of the Standing Committee of the National People’s Congress, Mr Qiao Xiaoyang, The Constitution and the Basic Law any time, as needed. (4th L); the then Commissioner of the Ministry of Foreign Affairs in the HKSAR, Mr Xie Feng (3rd L); former Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, Mr Feng Wei (2nd L); Deputy Political Commissar of the People's Liberation Army Hong Kong Garrison, Mr Wang Zhaobing (1st L); Secretary for Justice, Ms Teresa Cheng SC (4th R); the Another core issue worthy of contemplation is the relationship Offering six keys to understanding the Basic Law accurately, then Chief Justice, Mr Geoffrey Ma (3rd R); the Deputy Director of the Liaison Office of the Central People’s Government in the HKSAR, Mr Chen Dong (2nd R); Deputy Head of the Office for Safeguarding National Security of the CPG in the HKSAR, Mr Li Jiangzhou (1st R) at the Basic Law 30th Anniversary Legal Summit between the Constitution and the Basic Law because, as Mrs Lam Mr Qiao said that it must be viewed from the national perspective, pointed out, the steady and sustained development of “one country, that its constitutional status stems from the Constitution, that it is an A legal forum was held on 17 November 2020 to mark the 30th Thought-provoking issues two systems” in Hong Kong can only be guaranteed with a proper and anniversary of the promulgation of the Basic Law of the Hong Kong The forum focused attention on the core issues raised by the accurate understanding of the relationship between “one country” and Special Administrative Region. Themed “Back to Basics”, the Basic speakers and participating guests, including the “Back to Basics” “two systems”. Law 30th Anniversary Legal Summit saw many eminent officials, concept that is encapsulated in the event theme. The Chief Executive, Concurring, Mr Zhang Yong said that the Constitution is the panel speakers, law experts and academicians with expertise in the legal basis, the root and foundation of the Basic Law, elaborating Constitution of the People’s Republic of China and the Basic Law that all powers must come from the Central Authorities and powers Why do we use the concept of “Back to Basics”? We realised sharing their insights with the audience. that there are many people who do not fully comprehend the Basic enjoyed by the HKSAR are authorised in nature and must come from The Department of Justice, which organised this first-ever Law: some forget the Constitution, some say that the Constitution the Central Authorities. It is in this context that the “one country, two Legal Summit on the promulgation of the Basic Law, harnessed live does not apply in Hong Kong, and some even forget that “one systems” principle has to be understood. streaming technology to enable the general public in Hong Kong, country” is the precondition of “one country, two systems”. Hence, we decided to use the theme of “Back to Basics” to host this Basic mainland China and around the world to watch the forum. More than Law 30th Anniversary Legal Summit. Original Intent of the Basic Law 80,000 click rates were recorded on the online platforms in the first Of equal importance is the need to grasp the true intent behind three days. The morning session of the event was also broadcast live Teresa Cheng, GBM, GBS, SC, JP the formulation of the Basic Law, where the “one country, two by the four major television networks in Hong Kong. Secretary for Justice systems” concept has been enshrined to benefit the HKSAR’s long- ▲ The Secretary for Justice delivering closing remarks
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Why Hong Kong Series: “Why Hong Kong is Irreplaceable” Webinar Successfully Held
The city’s luminaries and key legal practitioners shared their In terms of Hong Kong’s future development as an international insights into why Hong Kong remains the place for doing business financial centre, Mr Yue identified three opportunities: connecting and dispute resolution at a hybrid event titled “Why Hong Kong Is Mainland and international financial markets, embracing sustainable Irreplaceable”. finance and technology, and transforming banking services through The event was organised by the Asian Academy of International fintech. Law (AAIL) in response to suggestions that the international business The event – held on 26 February 2021 at the Former French sector is considering other jurisdictions over Hong Kong as their Mission Building – attracted over 1,000 online registrants from 59 preferred venue for deal-making and dispute resolution. jurisdictions. It was sponsored by Invest Hong Kong and the Legal In their welcoming remarks, Dr Anthony Neoh QC SC JP, Affairs Steering Committee of the Hong Kong Chinese Enterprises Chairman of AAIL, and Mr Stephen Phillips, Director-General Association and supported by the Law Society of Hong Kong, the of Investment Promotion of Invest Hong Kong, spoke of Hong Hong Kong Bar Association, the Hong Kong Trade Development Kong’s geographical location, the rule of law, and the common law Council and major law firms and arbitration and dispute resolution system under the umbrella of “one country, two systems” as being institutes. ▲ Mr Zhang Yong, Vice-chairperson of the HKSAR Basic Law Committee of the NPCSC delivering a keynote speech online on the Constitution of the People’s Republic of China and the Basic Law: The Constitutional Basis of the Special Administrative Region fundamental drivers of Hong Kong’s past and continued success. During two panel sessions, distinguished practitioners drawing Keynote speaker, Mr Eddie Yue JP, the Chief Executive of the on more than 150 years of legal experience convened to discuss why “authorisation” law, that it should be understood in its entirety, that the Hong Kong Monetary Authority, also considered the international Hong Kong is irreplaceable. The panel on deal-making was moderated “one country, two systems” principle is the basis for its implementation concerns to be unjustified. “Hong Kong’s exceptional resilience under by Mr Martin Rogers, Partner & Chair (Asia) of Davis Polk, and the and its implementation should have the people and their development recent pressure reinforces – rather than calls into question – its long- dispute-resolution panel was moderated by Dr Thomas So JP, Partner in mind. term future as a global financial hub,” he said. of Mayer Brown. Applying these six keys, one would realise, according to Mr Zhang Mr Yue described Hong Kong’s financial leadership, world- In her closing remarks, the Secretary for Justice, Ms Teresa Xiao-ming and Deputy Director of the Liaison Office of the CPG in the class professional services, talent pool, legal system and regulatory Cheng SC, described in detail the elements that make Hong Kong’s HKSAR, Mr Chen Dong, that Hong Kong’s administrators must be environment as creating a unique ecosystem. “Each of the above is a infrastructure strong. “The fundamentals of Hong Kong have let us patriots and that Hong Kong people should appreciate the HKSAR’s great asset in its own right. When you put them all together and it runs withstand and rise above the challenges that we have been facing in responsibility in safeguarding national security. Mr Zhang Yong also like clockwork, you have a powerful ecosystem that would be very the past two years. The cornerstone of our society is the rule of law.
identified the three key bottom lines that must not be breached: ▲ Mr Qiao Xiao-yang, former Chairperson of the HKSAR Basic Law Committee of the hard to replace. This kind of infrastructure is so sticky that it’s ‘hard to The infrastructure that one looks at is not only confined to the legal NPCSC (2nd L), moderating a panel discussion with panellists Ms Maria Tam, Vice- move’,” he said. infrastructure but that of society as a whole,” she said. endangering national sovereignty, challenging the CPG’s authority and chairperson of the HKSAR Basic Law Committee of the NPCSC (1st L), Ms Elsie Leung, the Basic Law, and stirring up trouble in the HKSAR with the motive of former Vice-chairperson of the HKSAR Basic Law Committee of the NPCSC (2nd R) and Mr Feng Wei, former Deputy Director of the Hong Kong and Macao Affairs Office of the jeopardising national security. State Council (1st R), on The Drafting Process and Legislative Intent of the Basic Law Hong Kong’s Strong Infrastructure Legal infrastructure breaking arrangements with the Mainland in commercial and legal Leveraging the Benefits of the Basic Law •Hong Kong’s common law system is well tested, open, transparent, rule-based and independent. At the forum, the Vice-president of the International Court of cooperation and opened up business opportunities for the legal sector. •Hong Kong is well adapted to providing a business-friendly environment for commercial transactions. Justice, Judge Xue Han-qin, hailed the “one country, two systems” All of this has consolidated the HKSAR’s status as an international legal •The independence of the judiciary is provided for by the Basic Law. concept as a major and dispute resolution centre. Arbitration-friendly jurisdiction contribution from China To preserve the valuable insights and wisdom voiced by guest Read More •Hong Kong’s arbitration laws are modelled on the United Nations Commission on International Trade Law to international law by speakers and panellists at the Basic Law 30th “Why Hong Kong” (UNCITRAL) Model Law on International Commercial Arbitration. webinar series promoting peaceful Anniversary Legal Summit, the Department •Hong Kong provides for third-party funding in arbitration. resolution of historical of Justice is now compiling their speeches •Hong Kong allows for the arbitrability of intellectual property disputes. issues. and discussions with the aim of having them Advantages of “one country, two systems” Leveraging the published in the second quarter of 2021, to •Game-changing arrangement allows parties to arbitral proceedings seated in Hong Kong to apply to Mainland courts to obtain interim benefits of this ingenious provide inspiration for all who love Hong Kong measures. For more • institution, Hong Kong ▲ The Secretary for Justice meeting Mr Qiao Xiao- and are committed to the success of the “one information, New opportunities are opening up through the Belt and Road Initiative, the Greater Bay Area, and the Mainland and Hong Kong Closer yang, Former Chairperson of the HKSAR Basic Law Economic Partnership Arrangement. has secured ground- Committee of the NPCSC. country, two systems” principle. please visit: https://aail.org/past-event-2021-why-hk-is-irreplaceable/ https://www.legalhub.gov.hk/events_detail.php?a=115&v%5B%5D=basic-law-30-sup-th-sup-anniversary-legal-summit-back-to-basics&l=en
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Why Hong Kong Series:"Why Arbitrate in Hong Kong" Mutual Legal Cooperation with the Mainland
Riding on the success of “Why Hong Kong Is Irreplaceable”, this webinar co-organised by the Department of Justice and the Asian Academy of International Law on 31 March 2021 further showcased Article 95 of the Basic Law provides the legal foundation for judicial cooperation between the HKSAR and the Mainland. Given the close socio- Hong Kong’s core strengths and preponderant role as a leading economic ties between the two places, it is necessary to establish a structured and effective legal cooperation mechanism in civil and commercial international arbitration centre. matters. Following the keynote speech by the Secretary for Justice, Ms Taking advantage of Hong Kong’s strengths under the framework of the Basic Law – with its unique edge under “one country, two systems” – Teresa Cheng SC, prominent legal and business experts engaged the Department has been actively strengthening legal cooperation between the HKSAR and the Mainland in civil and commercial matters. in interactive discussions on various case scenarios, highlighting the Recently, the Department completed a number of far-reaching legal arrangements to meet the needs of the community in this area, and practical considerations of parties involved in cross-border disputes in consolidate Hong Kong’s status as an international legal and dispute resolution services centre in the region. their choices of arbitration seat. As remarked by the distinguished panellists, the diverse pool of international legal talents, ground-breaking arrangements entered into with the Mainland, the pro-arbitration and independent judiciary, Supplemental Arrangement with the Supreme People’s Court enforceability of arbitral awards and neutrality of Hong Kong as a and the Arbitration (Amendment) Ordinance 2021 seat of arbitration are some of the key answers The Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special to the question “Why Arbitrate in Hong Kong”. ▲ The Secretary for Justice, Ms Teresa Cheng; Chairman of the Asian Academy of Administrative Region (Arrangement) was signed by the Department of Justice and the Supreme People’s Court on 21 June 1999, The webinar attracted a total of 625 online International Law, Dr Anthony Neoh; and other speakers attended the “Why Arbitrate in registrants. Hong Kong” webinar at the Former French Mission Building and came into effect on 1 February 2000. https://www.doj.gov.hk/en/events/pdf/ Following a review of the Arrangement by the Department in consultation with the Supreme People’s Court, the Supplemental flyer_2021_03_31_why_arbitrate_in_HK.pdf Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (Supplemental Arrangement) was signed on 27 November 2020. The Supplemental Arrangement amends the Arrangement and brings it more fully in line with the current practice of international arbitration. The Arbitration Ordinance (Cap. 609) has been amended to fully implement the Supplemental Arrangement.
Secondment Arrangements with International How the Supplemental Arrangement improves the Arrangement Organisations for Hong Kong Lawyers – HCCH •It expressly includes the term “recognition” when referring to the enforcement of arbitral awards in the Arrangement. •It clarifies that a party may apply for preservation measures before or after the court’s acceptance of an application to enforce an arbitral award. •It aligns the definition of the scope of arbitral awards with the prevalent international approach of “seat of arbitration” under the Negotiations have been underway between the Department settings where they can grow professionally, learn from their overseas New York Convention. of Justice and overseas organisations to provide secondment peers about the operation of international law and bring a Hong Kong •It allows the parties to make simultaneous applications to both the courts in Mainland China and the HKSAR for the opportunities for local legal talents with a view to grooming them perspective in shaping its future development. enforcement of arbitral awards. professionally. The aim is to expose them to a myriad of international On 22 December 2020, the Secretary for Justice, Ms Teresa Cheng SC, signed a Memorandum of Understanding at a virtual signing ceremony with the Secretary General of the Hague With the coming into full effect of the Supplemental Conference on Private International Law (HCCH), Dr Christophe Arrangement on 19 May 2021, the above arrangements have Bernasconi, for the technical and administrative arrangements relating provided a simple and effective mechanism in both the Mainland to the secondment of legal professionals to the HCCH Secretariat. and Hong Kong on the reciprocal enforcement of arbitral Under the memorandum, a standing arrangement has been put awards. in place to enable Hong Kong legal professionals from the public and private sectors to be seconded to the HCCH. The secondees selection For details, see: process started in January 2021 and the successful applicants for the https://www.info.gov.hk/gia/general/202102/17/ HCCH posts can be expected to commence their secondment as early P2021021700627.htm as the third quarter of 2021. The Department is working out additional ▲ arrangements with other reputable international organisations, with The Secretary for Justice, Ms Teresa Cheng, and Vice-president a view to making more secondment opportunities available in the of the Supreme People’s Court, Mr Yang Wanming, signed the Supplemental Arrangement Concerning Mutual Enforcement of ▲ Department of Justice and HCCH representatives in a virtual briefing on 8 February coming 12 months. Arbitral Awards between the Mainland and the Hong Kong Special 2021 to introduce participants to the secondment programme to HCCH Administrative Region
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Updates on Other Developments LawTech Developments
Compendium of Notable Court Cases related to the Arrangement eBRAM Platform The HKSAR collaborated with the Mainland to publish their first-ever joint compendium of notable court cases related The demand for cross-border dispute resolution is expected to increase exponentially, due to the rapid expansion of cross-border trade to mutual enforcement of arbitral awards. Published in English and Chinese, the compendium seeks to enhance public and e-commerce, and the progressive implementation of various national development plans. understanding of the cross-border judicial assistance systems and the Arrangement. Since its launch in June 2020, the COVID-19 Online Dispute Resolution (ODR) Scheme has been providing a speedy and cost- effective means to help the public and businesses resolve their disputes. Initiated by the Department, the scheme is operated by eBRAM https://www.legalhub.gov.hk/assets/pdf/Compendium_of_Notable_Cases_relating_to_the_Arrangement_Concerning_Mutual_Enforcement.pdf International Online Dispute Resolution Centre Limited (the eBRAM Centre). In January 2021, the Finance Committee of the Legislative Council approved $100 million in one-off funding to the Interim Measures Arrangement between the Mainland and HKSAR eBRAM Centre to develop and enhance its ODR and deal-making platform, the eBRAM Platform. The eBRAM Platform On 2 April 2019, the HKSAR Government and the Supreme People’s Court signed the aims to provide one-stop, cross-border, online deal-making and dispute-resolution services to parties in commercial or investment disputes in any part of the world, including the Belt and Road regions and the Greater Bay Area. Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral https://www.ebram.org/covid_19_odr.html Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (Interim Measures Arrangement), which came into force on 1 October 2019. Hong Kong Legal Cloud As at 23 April 2021, the Hong Kong International Arbitration Centre had processed 43 In the 2020 Policy Address, the Department was tasked to develop the Hong Kong Legal Cloud to enhance the capability of local legal applications made to Mainland courts for interim measures under the Interim Measures and dispute resolution sectors to harness modern technology in providing services and promote the development of LawTech in Hong Kong. Arrangement, involving assets amounting to RMB13.8 billion. The Centre ▲ The Secretary for Justice, Ms Teresa Cheng SC and The Hong Kong Legal Cloud is an advanced, user-friendly online facility that provides safe, secure, affordable data storage services to the was aware of 28 decisions issued by the Intermediate People’s Courts. the Vice -president of the Supreme People ’s Court, Yang local legal and dispute resolution communities. The Department will provide around $15.7 million (Hong Kong Legal Wanming signed the Arrangement Concerning Mutual Twenty-six applications for preservation of assets were granted to the Assistance in Court -ordered Interim Measures in Aid of Cloud Fund) for the development of the Hong Kong Legal Cloud by selected, local, non-profit-making non-governmental Arbitral Proceedings by the Courts of the Mainland and of organisation(s) (NGO(s)) through public-private partnership. On 11 February 2021, the Department announced its applicants and two were rejected. The assets preserved amounted to the Hong Kong Special Administrative Region in 2019 invitation of submissions from local NGOs for the development and provision of services of the Hong Kong Legal Cloud. RMB10.5 billion. https://www.doj.gov.hk/en/community_engagement/announcements/hk_legal_cloud.html https://www.info.gov.hk/gia/general/201904/02/P2019040200782.htm On 1 April 2021, the Department co-organised the “Webinar on the Hong Kong Legal Cloud” with the Law Society Arrangement for Judgments in Civil and of Hong Kong, gathering around 200 local legal and dispute resolution and IT professionals to exchange views and Commercial Matters between Hong Kong and the Mainland insights on the development of the Hong Kong Legal Cloud. https://www.legalhub.gov.hk/events_detail.php?a=270&v=webinar-on-hong-kong-legal-cloud# On 18 January 2019, the HKSAR and the Mainland signed the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region. It seeks to reduce the need to relitigate the same disputes in both jurisdictions. The Arrangement will be implemented by local legislation in Hong Kong which the Department of Justice is actively taking forward. Closer Legal Connections to the Greater Bay Area Mutual Recognition of and Assistance to Insolvency Proceedings On 14 May 2021, the HKSAR and the Mainland signed the Record of Meeting on Mutual Recognition of and Assistance to Insolvency Hong Kong’s ties to the Greater Bay Area (GBA) have grown closer providing legal services on specific civil and commercial matters Proceedings between the Courts of the Mainland and the HKSAR, which establishes a new mechanism whereby liquidators and provisional following two significant legal developments. (including litigation and non-litigation matters) in the nine liquidators from Hong Kong may apply to Mainland courts in Shanghai, Xiamen and Shenzhen for recognition of and assistance in insolvency Mainland municipalities in the GBA. The GBA Legal Professional and debt restructuring proceedings in the HKSAR. Likewise, bankruptcy administrators from the Mainland may, pursuant to the existing common • Liberalisation measure in Qianhai Examination was promulgated in October 2020. To promote it, law regime, apply to our High Court for recognition of and assistance in Mainland bankruptcy proceedings. The new Over 11,000 Hong Kong wholly-owned enterprises registered the Department held an online seminar on 19 November, co- cooperation framework better protects the interests and enhances the confidence of the stakeholders and hence is conducive in Qianhai, Shenzhen can now choose Hong Kong law as the hosted with the Ministry of Justice, the Department of Justice of to improving the investment and business environment in both the HKSAR and the Mainland. Details of the new cooperation applicable law for their civil and commercial contracts. This follows Guangdong Province and the Legal Affairs Bureau of Macao. Due mechanism can be found here: https://www.doj.gov.hk/en/community_engagement/press/20210514_pr1.html. amendments to the “Regulations of the Qianhai Shenzhen-Hong to the pandemic, the exam scheduled on 30 January 2021 was Kong Modern Service Industry Cooperation Zone of the Shenzhen postponed to 31 July with new examination venues set up in Hong Refinement of the Arrangement for Mutual Service of Judicial Documents in Special Economic Zone” in August 2020. Kong in addition to those in Shenzhen and Civil and Commercial Proceedings Zhuhai. The Department of Justice and the Supreme People’s Court are looking into the possibility of refining the Arrangement for Mutual Service of •The GBA Legal Professional Examination Read more in the SJ’s Blog: Judicial Documents in Civil and Commercial Proceedings between Mainland and Hong Kong Courts signed in January 1999, so as to improve the Eligible Hong Kong lawyers can now take a special exam https://www.doj.gov.hk/en/community_ service of judicial documents and bring better facilitation to the parties involved. and become qualified as PRC legal practitioners in the GBA, engagement/sj_blog/20201026_blog1.html
10 11 What’s New?
New Legislation for Fighting COVID-19 Improving the HKSAR’s Electoral System
Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599K) Since the protests against the legislation of Article 23 of the Territory-wide vaccination is a crucial step in fighting against COVID-19. The HKSAR Government has purchased over 22 million Basic Law in 2003, the anti-national education in 2012, the illegal doses of COVID-19 vaccines from different vaccine developers. These vaccines will be provided free of charge to all Hong Kong residents occupation in 2014, the Mong Kok riot in 2016 and all the violent through the Government’s COVID-19 Vaccination Programme. acts in 2019, there have been people disseminating the idea of As a statutory backing, the Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599K) was made to allow the use disobeying the law, spreading anti-China sentiments seeking to of COVID-19 vaccines on an emergency basis. The Regulation empowers the Secretary for Food and Health to authorise COVID-19 disrupt Hong Kong and some radical separatist forces have even vaccines after considering the safety, efficacy and quality of the vaccines. The Secretary must consult the advisory panel before granting entered the HKSAR's governance framework through various an authorisation. A vaccine may be authorised only if it has been approved by a drug-regulator of a place outside Hong Kong or is listed elections. The existing electoral system in the HKSAR has clear by the World Health Organization. Further, the Secretary has a duty to put in place a mechanism to monitor any adverse event associated loopholes. Necessary measures must be taken to ensure “one with the administration of the vaccines. As with other medical treatments, informed consent must be obtained before administration of the country, two systems” is fully and accurately implemented on the authorised vaccines. right track. As of 2 March 2021, the Secretary has authorised two COVID-19 vaccines under the Regulation. They are: Constitutional order in relation to the HKSAR is within the •CoronaVac by Sinovac Biotech (Hong Kong) Limited; and purview of the Central Authorities. The Central Authorities have •Comirnaty by Fosun Pharma in collaboration with the German drug manufacturer BioNTech. the power and duty to deal with the matter. The Decision of the The COVID-19 Vaccination Programme was officially launched on 26 February 2021 and is open for booking. By the end of March National People’s Congress (NPC) on improving the electoral ▲ The Secretary for Justice speaking at a briefing session 2021, a total of over 460,000 persons have been vaccinated. system of the HKSAR (the Decision) was passed on 11 March 2021. The NPC had authorised its Standing Committee to make Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599J) amendments to Annexes I and II to the Basic Law. The HKSAR process, as specified in Articles 45 and 68 of the Basic Law, Meanwhile, the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599J) has empowered also amended relevant local laws accordingly so as to implement remains unchanged. the authority to require certain persons to undergo testing for COVID-19 with a view to strengthening tracing ability. Since November 2020, the Decision and the amended Annexes I and II to the Basic Law. The increase in the size of the Election Committee and the instruments such as Compulsory Testing Notices, which concern various high-risk groups, and Restriction-testing Declarations, including Every place has its own historical, cultural and political Legislative Council shows a broader representation overall. The the ones targeting the specified “restricted premises” in Jordan and Sham Shui Po, etc., have been issued under Cap. 599J to enforce the background, and hence there is no one panacea for all in respect additional sector and constituency also provide more balanced measure. of electoral systems and improvements to be made. The NPC political participation, signifying a positive move for the electoral Standing Committee, when deliberating the amendments to system in the HKSAR. The election of some members of the Annexes I and II to the Basic Law, had already taken into account Legislative Council by the Election Committee reflects the the actual situation in Hong Kong. The ultimate aim of universal important responsibility for representing the overall interests of suffrage, to be achieved in light of the actual situation in Hong Hong Kong society vested in the Election Committee in the future Kong and in accordance with the principle of gradual and orderly electoral system. The improvement to the electoral system expands the balanced and orderly political participation as well as a broader representation of society, synthesising a new democratic electoral system suited to Hong Kong’s actual situation and with Hong Kong characteristics.
▲ DoJ colleagues received COVID-19 vaccinations at the Community Vaccination Centre at the Sun Yat Sen Memorial Park Sports Centre to protect themselves and others
▲ The Director of Public Prosecutions (Acting), Ms Maggie Yang (centre), visited
▲ The Director of Public Prosecutions the Department of Justice (DoJ) colleagues on duty at the Boundary Street Sports (Acting), Ms Maggie Yang, joined the Centre Community Vaccination Centre in Mong Kok. She thanked them for their DoJ colleagues to distribute face masks contribution in serving members of the public and in the anti-epidemic work. She to the members of the public after also extended her gratitude and gave encouragement to all the staff members at vaccination the centre ▲ The Secretary for Justice speaking at a briefing session
12 13 Global and Mainland Connections
Department of Justice’s Global and Mainland Connections Map Hong Kong 21 October 2020 Webinar on ODR at the In-House Community e-Congress 2020 (see p. 16).
4 November 2020 Washington DC, United States of America DoJ counsel spoke at the 14th Annual Generations in Arbitration Conference (Virtual Edition) themed “Why Arbitration Evergreens Do Not Get Old: A Fresh Look at 13-15 October 2020 the Importance of How an Arbitration Agreement is Worded and Expert Witnesses and Government Counsel from the Law Drafting Division participated in the virtual conference their Roles in International Arbitration Proceedings”, which was jointly organised by the Access for All: Plain Language is a Civil Right, co-hosted by Clarity International, the Center Department of Justice and the Moot Alumni Association during Hong Kong Legal Week for Plain Language and Plain Language Association International. Participants from around the 2020. world discussed the importance of clear communication in the legal, medical and public service The Hague, Vienna, fields and exchanged ideas on how to increase access to justice by using plain language. 5 November 2020 Netherlands Austria The Secretary for Justice delivered welcoming remarks at the 3rd Greater Bay Area Incheon, Summit, themed “5G - Commencing a New Chapter of the Smart Era in the Greater Bay Washington DC, Geneva, Republic of Korea Switzerland Area”, organised by the Guangdong-Hong Kong-Macao-Bay Area Economic and Trade Geneva, Switzerland United States of America Association. Tokyo, Japan 20-30 October 2020 Shenzhen 11-14 November 2020 The Department participated as part of the Chinese delegation in the Virtual 6th Session Hong Kong hosted the virtual ICC of the United Nations Human Rights Council Open-ended Intergovernmental Working Group on Hong Kong International Commercial Mediation Transnational Corporations and Other Business Enterprises with Respect to Human Rights. Competition – Hong Kong 2019/20, giving Bangkok, Thailand students from 20 universities a chance to 26 February 2021 Video message is given by the Secretary for Justice at 46th session of UN Human Rights Singapore improve their advocacy skills in simulated Council. mediations of commercial disputes. The winning team from Poland went on to compete in the online ICC International Commercial Mediation Competition in February 2021. Incheon, Republic of Korea 20 November 2020 3-4 November 2020 Virtual Mock Arbitrations were jointly organised by the CMAC (China Maritime The Commissioner of Inclusive Dispute Avoidance and Resolution Office (IDAR), Dr Arbitration Commission), Hong Kong Arbitration Centre, the Department of Justice and James Ding, was invited to the virtual North-East Asian Multistakeholder Forum on Sustainable others. The Commissioner of IDAR Office, Dr James Ding, delivered welcoming remarks at Development Goals, and shared the experience of Hong Kong, China, in the session on the event. “Progress in the implementation of the 2030 Agenda for Sustainable Development in North-East Asia with the impact of the COVID-19 pandemic”. 30 November 2020 The Hague, Netherlands Shenzhen The thematic breakout session “Positioning Hong Kong for Deal-making and Dispute Resolution under the Belt and Road Initiative” co-organised by the Department of Justice 6-9 October 2020 5 November 2020 and Hong Kong Trade Development Council at the 5th Belt and Road Summit was held in Bangkok, Thailand HCCH Expert Group Meetings on ODR (see p.16). Inaugural Symposium on Maritime Cooperation and Hong Kong. The Secretary for Justice delivered welcoming remarks at the session. Ocean Governance (see p.18). 23-26 March 2021 3 December 2020 Government Counsel from the Rule of Law Unit attended the virtual Eighth Asia-Pacific Annual Colloquium on International Law 2020 (see p. 19). Forum on Sustainable Development themed “Sustainable and resilient recovery from the Tokyo, Japan More speeches, presentations and 4 December 2020 COVID-19 pandemic in Asia and the Pacific”. symposium information can be found at 6 October 2020 A virtual breakout session on “Hong Kong’s unique role in IP creation, protection and http://www.csarc.org.cn/events/smcog/ Webinar on ODR at the In-House Community enforcement as well as dispute resolution in GBA and beyond” was co-organised by the e-Congress, Tokyo (see p. 16). 7 November 2020 Department of Justice, Hong Kong Trade Development Council and Hong Kong Design Singapore The Secretary for Justice delivered a speech at the Centre at the 10th Business of Intellectual Property Asia Forum 2020. The Secretary for 5 March 2021 Fifth Qianhai Legal Intelligence Forum, themed “International Justice gave welcoming remarks at the breakout session. Signing of Memorandum of Understanding with the APEC Secretariat (see p. 20). Vienna, Austria Commercial Litigation and ADR”, organised by the Shenzhen 7 December 2020 Intermediate People’s Court, Shenzhen Law Society, Hague Academy of International Law’s 2021 Hong Kong Programme (see p. 18). 2 November 2020, 18 March 2021 Shenzhen Justice Bureau and other Mainland authorities. Opening of the DoJ Office for Collaboration with 14-21 March 2021 Wellington, New Zealand UNCITRAL during Legal Week, followed by the 1st 15 December 2020 The 18th Willem C. Vis East International Commercial Arbitration Moot (2nd Virtual Vis 4-5 March 2021 Meeting of iGLIP on ODR held in collaboration with Workshop at the APEC Small and Medium Enterprises East Moot) was organised by Vis East Moot Foundation Limited. The Secretary for Justice APEC Economic Committee 1st Plenary Meeting (see p. 20). UNCITRAL (see p. 17). Business Forum 2020, Hong Kong (see p.16). delivered closing remarks at the Moot on 21 March 2021.
14 15 Global and Mainland Connections
The Department Participates in a Series of Events Virtual Pre-intersessional Meeting of on Online Dispute Resolution (ODR) UNCITRAL Working Group III – Use of Mediation in ISDS
HCCH Expert Group Meetings on ODR On 9 November 2020, with publications Global Arbitration Review and Kluwer Arbitration Blog. From 6 to 9 October 2020, the Experts’ Group on the Tourists and Visitors the support of the Central People’s As UNCITRAL Working Group III is considering mediation as an option (ODR) Project of the Hague Conference on Private International Law (HCCH) Government, the Department of for ISDS reform, the Virtual Pre-intersessional Meeting has provided timely held its third meeting virtually. The meeting focused on the necessity, desirability Justice co-organised with the United and valuable insights from senior government officials, leading practitioners and feasibility of a soft law instrument on matters relating to ODR and discussions Nations Commission on International and world-renowned academics to facilitate international rule-making with canvassed recent developments, existing ODR and alternative dispute resolution Trade Law (UNCITRAL) and the respect to investment mediation. The conference proceedings, containing systems. The Commissioner of Inclusive Dispute Avoidance and Resolution Asian Academy of International a collection of speakers’ presentations and papers contributed by various Office (IDAR) Office, Dr James Ding, attended the meeting as part of the Chinese Law (AAIL) the first-ever Virtual young practitioners in the HKSAR, are now available at https://www.doj.gov.
delegation. ▲ Pre-intersessional Meeting for ▲ “‘Getting the frameworks right’, hk/en/publications/international_law.html.
Participants at the meeting of the HCCH Experts’ Group on the Tourists and ‘overcoming psychological barriers through Visitors (ODR) Project, including Dr James Ding (3rd row, 1st L) UNCITRAL Working Group III. education’ and ‘unlocking mediation’s The Virtual Pre-intersessional Meeting will be followed by the synergy with other ISDS reform options’ The Working Group has been are the three main directions for developing Intersessional Meeting, which will mark the first time that a Working Group mediation as an ISDS reform option,” said Webinars at the In-House Community e-Congress 2020, Hong Kong and Tokyo considering the reform of investor- the Secretary for Justice, Ms Teresa Cheng, of UNCITRAL has held a formal meeting in the HKSAR. These international Due to the COVID-19 pandemic, the annual In-House Congress organised by the In-House Community was held virtually in the form of a series State dispute settlement (ISDS) in her closing remarks initiatives indeed reflect the innovative aspect of the “one country, two of webinars. On 6 and 21 October 2020, the Department co-hosted two webinars on ODR in Tokyo (in collaboration with the Hong Kong Economic since 2017. With the theme of “Use of Mediation in ISDS”, the Virtual Pre- systems” policy and the Basic Law under which the HKSAR contributes to and Trade Office in Tokyo) and in Hong Kong, respectively. The webinars explored the value of ODR in resolving cross-border commercial disputes, intersessional Meeting was conducted live to 74 countries and regions with the work of international organisations in an appropriate capacity. especially in the midst of the pandemic. Dr James Ding, as one of the speakers for the Tokyo webinar, also highlighted recent developments of around 530 registrants, and has been widely reported in the international ODR in Hong Kong, including the COVID-19 ODR Scheme.
Workshop at the APEC Small and Medium Enterprises Business Forum 2020 Opening of the DoJ Project Office for Collaboration On 15 December 2020, Dr James Ding, as the Chair of the APEC with UNCITRAL, and 1st Meeting of iGLIP on ODR Economic Committee (APEC EC), delivered a pre-recorded keynote speech at the APEC Small and Medium Enterprises Business Forum – International Forum on Legal Services for the Healthy Development of Enterprises, The Department of Justice Project Office for Collaboration with online platforms, including in held in Shenzhen. Dr Ding introduced APEC’s initiative to use ODR to help UNCITRAL (the DoJ Project Office) was established in the Hong Kong resolving disputes and trade- global businesses, in particular micro, small and medium-sized enterprises Legal Hub during Legal Week in November 2020 to work on the greater use related activities, which will (MSMEs), to resolve cross-border disputes, as well as highlighting some of of technology in international trade, including in the field of online dispute also assist UNCITRAL in the breakthroughs, such as the endorsement of the APEC ODR Framework resolution (ODR), pursuant to the Memorandum of Understanding signed identifying possible future in August 2019, which provides a framework for the provision of technology- between the Department and UNCITRAL on 4 November 2019. work in these areas. The assisted dispute resolution through negotiation, mediation and arbitration. The DoJ Project Office for Collaboration with UNCITRAL provides meeting exemplifies Hong One of the significances of the APEC ODR Framework, as mentioned by Dr secretariat support to the Inclusive Global Legal Innovation Platform Kong’s initiatives in promoting Ding, was that it was used as a reference for other recent ODR initiatives in on Online Dispute Resolution (iGLIP on ODR), consisting of over 25 ODR and enhanc ing ▲ Dr James Ding delivering his pre-recorded speech at the APEC SME Business Hong Kong, including the COVID-19 ODR Scheme. Forum 2020 experts from 19 jurisdictions, with close liaison with UNCITRAL and other international cooperation ▲ The Secretary for Justice delivering opening remarks at the meeting international organisations which work in this area, to provide an inclusive through exploring the use of forum which facilitates discussion, collaborative knowledge sharing and high-tech innovative solutions to facilitate deal-making and dispute resolution BIMCO adds Hong Kong to new Law and Arbitration Clause problem solving in relation to ODR. for global business, investment and trade. On 18 March 2021, iGLIP on ODR held its first The DoJ Project Office is one of the latest examples of the Department meeting virtually in collaboration with UNCITRAL, of Justice’s close collaboration with international legal organisations, For the first time, Hong Kong joins London, New York and Singapore as a named arbitration venue in the new BIMCO Law with opening remarks from the Secretary for Justice, facilitating international cooperation and showcasing Hong Kong’s and Arbitration Clause 2020. BIMCO (formally known as the Baltic and International Maritime Council) is one of the world’s Ms Teresa Cheng SC, and the UNCITRAL Secretary, international profile in staying at the forefront of providing high-quality largest maritime organisations. Its recognition of Hong Kong reflects the city’s strengths as a venue for dispute resolution and Ms Anna Joubin-Bret. At the meeting, experts from international legal, deal-making and dispute resolution services and the the fact that Hong Kong is currently ranked in the top tier among global maritime arbitration https://www.bimco.org/contracts- around the world discussed recent developments in ▲ Logo of iGLIP on ODR development of LawTech. and-clauses/bimco-clauses/current/law-and-arbitration-clause-2020-hong-kong.
16 17 Global and Mainland Connections
Finally, by way of reference to the regional order of the collaboration, cooperation and commitment on different fronts to build The Hague Academy of International Law’s 2021 Mediterranean, it was submitted that the key to resolving the South on common interests. China Sea situation was focusing on mutual benefit and peaceful Speeches and presentations of selected speakers and more Hong Kong Programme coexistence and avoiding disputes instead of judicialising them, relying information about the symposium can be found at http://www.csarc.org. on the Asian culture and approach in building relationships to focus on cn/events/smcog/.
The First Edition of the Hague Academy of International Law’s of the programme with a focus Advanced Course in Hong Kong has been postponed from 2020 to on current trends in international Annual Colloquium 2020 – Challenging an Interdependent 2021 due to the pandemic. To bridge the gap, a webinar entitled “An commercial dispute settlement. Introduction to the Hague Academy of International Law’s 2021 Hong Speaking at the webinar co- World: Sanctions – Principles of Non-interference Kong Programme” was organised by the Department of held on 7 December 2020 Justice, the Hague Academy of to provide some 360 International Law and the Asian ▲ Professor Jean-Marc Thouvenin On 3 December 2020, the Secretary for Justice, Ms Teresa Cheng as economic registrants an overview Academy of International Law were the Secretary for Justice, Ms SC, gave a keynote speech at the 2020 Colloquium on International Law, ones, may be
Teresa Cheng SC, Dr Christophe Bernasconi, Professor Diego P. jointly organised by the Asian Academy of International Law (AAIL) and introduced for
▲ The Secretary for Justice and Dr Anthony Neoh, Chairman of the Fernández Arroyo, Professor Jean-Marc Thouvenin and Dr Anthony the Chinese Society of International Law, with the theme of “Challenging the legitimate Asian Academy of International Law Neoh QC SC JP. an Interdependent World: Sanctions – Principles of Non-Interference”. pursuance of a Held at the Chapel of the Former French Mission Building and State’s economic broadcast online, the Colloquium gathered an array of highly distinguished interests, but a Secretary for Justice Speaks at the Inaugural Symposium speakers to discuss the topic of sanctions in an interdependent world, and State’s intentions on Maritime Cooperation and Ocean Governance how unilateral sanctions have been escalating international tension and to the contrary may be patently obvious if it explicitly states to the international divergence. Apart from the Secretary for Justice, the then Commissioner community that such economic coercion is pursued for other motives. of the Ministry of Foreign Affairs of the People’s Republic of China in the Finally, by highlighting the adverse impact of unilateral coercive On 5 November 2020, the Secretary for Justice, Teresa Cheng SC, the “Declaration on the Conduct of Parties in the South China Sea” HKSAR, Mr Xie Feng, also delivered a keynote address, with the Chief measures on the global community to combat the pandemic, the delivered a keynote speech at the Inaugural Symposium on Maritime and the “Code of Conduct for the South China Sea”, which is currently Executive, Mrs Carrie Lam, delivering the opening address. Secretary for Justice concluded that any discussion of sanctions Cooperation and Ocean Governance, jointly organised by the National under negotiation, the point was further made that the ASEAN-China The Secretary for Justice’s keynote speech first addressed should have regard to the principle of non-intervention, and any such Institute for South China Sea Studies, China-Southeast Asia Research relationship is based on collaboration and cooperation between the two the important principle of non-intervention under international law intervention should be done through the United Nations system. She Center on the South China Sea, and Institute for China-America Studies sides. and how it came into being, highlighting its nature and the need for further emphasised that “unilateral coercive measures” are not legitimate and sponsored by the China Institute of the University of Alberta. She then pointed out that in resolving disputes in the Asian region, exceptions to the principle, but emphasising that any exceptions should sanctions at all, and are a major barrier to international peace and This inaugural two-day symposium brought together over 500 the Asian culture adopts a different approach to other parts of the world, only exist under the United Nations Framework: “…the international stability. Instead, the international community should join in solidarity and participants from around 30 countries and regions, and comprised which calls for deeper understanding of each other, and not resorting community recognised that there may be a need for administering lawful unity to put an end to unilateral coercive measures. seven sessions, covering topics including “Global Ocean Governance to direct confrontation. This is demonstrated in previous instruments in intervention under international law in light of ongoing issues such as An in-depth panel discussion then followed. Moderated by the and Regional Practices”, “Recent Development and Hotspot Issues the region such as the “Treaty of Amity and Cooperation in Southeast terrorism or nuclear proliferation to further the objects of the [United Chairman of AAIL, Dr Anthony Neoh QC SC JP, distinguished speakers in the South China Sea”, “Maritime Security Cooperation and Risk Asia”, the “ASEAN-China Strategic Partnership Vision 2030 Statement”, Nations] Charter…Yet, as these interventions necessarily infringe on the were invited to examine the subject, including the Secretary General of The Management”, “Regional Order Construction in the South China Sea”, and the “Five Principles of Peaceful Coexistence”. This is contrasted sovereignty of a state, its administration should only be effected under Hague Academy of International Law, Professor Jean-Marc Thouvenin; “Maritime Cooperation: Current Practices and the Future”, “Frontier with the “Western approach”, which is more confrontational and tends the auspices of the United Nations, with actions taken being subject Professor of International Law at China Foreign Affairs University, Professor Research on Maritime Issues and Capacity Building for Ocean to resort to legal action which may not be a final resolution to a dispute to its strict oversight and approval”. The sanctions system under the Sienho Yee; Dean of the School of International Law at the China University Governance” and “New Ideas and Initiatives for Ocean Governance”. between states. In the context of the South China Sea disputes, the United Nations Security Council and the United Nations Responsibility to of Political Science and Law, Professor Kong Qingjiang; Choh-Ming Li In addition to the Secretary for Justice, other distinguished “Western approach” is not preferred, she said: “The territorial and Protect was highlighted. Professor of Law at the Chinese University of Hong Kong, Professor Chin speakers included the Former President of the Philippines, Her boundary disputes relating to sovereignty in the South China Sea The impact of States’ unilaterally imposed sanctions, referred to Leng Lim; and Partner of Davis Polk, Mr Martin Rogers. Excellency Madam Gloria Macapagal Arroyo, and Secretary General of are complex, as the consequences in question directly affect the as “unilateral coercive measures”, was then examined. These include The colloquium received a very enthusiastic response, with almost the International Seabed Authority, Mr Michael Lodge. relationship between neighbouring states. Whatever the result of such measures against officials in the HKSAR and the People’s Republic of 500 online participants, including academics, legal practitioners, In her keynote speech, the Secretary for Justice highlighted the adversarial process, diplomatic relations are bound to be affected, and China (PRC) brought about in response to the National Security Law in business professionals and government officials, importance of China-ASEAN relations in the context of the South China antagonistic actions at borders may occur”. There may also be external Hong Kong, which are at odds with the principle of non-intervention and coming from 39 jurisdictions in attendance. Sea, noting that “the situation in the South China Sea is particularly influences which may have an effect on maritime security in the region, do not respect the sovereign rights of other States. The PRC is wholly A recording of the colloquium and speakers’ relevant and is the most obvious issue that should be addressed. with the United States’ “Freedom of Navigation Operations” as an justified in deploying any countermeasures as a response to a breach presentations can be found at https://aail.org/past- Central to this is the ASEAN-China relationship”. Making reference to example. of the principle of non-intervention against itself. Other measures, such event-2020-colloquium/.
18 19 Global and Mainland Connections
Memorandum of Understanding Contracts for the International Sale of Goods for Contribution to APEC Conference and Seminar
On 5 March 2021 via a virtual signing ceremony, the Secretary for Government to set up a new sub-fund under APEC for Strengthening To celebrate the 40th anniversary of the United Nations Justice, Ms Teresa Cheng SC, signed a memorandum of understanding Economic Legal Infrastructure (SELI sub-fund). Convention on Contracts for the International Sale of Goods (CISG), with the Executive Director of the Asia-Pacific Economic Cooperation The Department of Justice has been actively engaged in the the Department of Justice co-organised with the United Nations (APEC) Secretariat, Dr Rebecca Fatima Sta Maria for the HKSAR work of APEC as part of the Hong Kong, China delegation to APEC’s Commission on International Trade Law (UNCITRAL) and the Asian Economic Committee (EC) and its Friends of the Chair Academy of International Law (AAIL) a virtual conference in Hong Kong Group on SELI. The Department proposed to set up on 27 October 2020. the SELI sub-fund, committing to contribute US$1 The Secretary for Justice, Ms Teresa Cheng SC, delivered the million for capacity-building projects which assist APEC welcoming speech for the conference. The Secretary remarked that economies in advancing structural reform, strengthening there were 94 contracting States from diverse legal traditions and economic legal infrastructure and enhancing technical economic development, which together represented over two-thirds cooperation on using modern technology for trade of the global economy. She added that the CISG, as a multilateral and dispute resolution in the region. The SELI sub- instrument, had established a fair, transparent and uniform legal regime fund demonstrates Hong Kong’s commitment to the for cross-border sale of goods contracts. Many countries participating ▲ Ms Anna Joubin-Bret, the Secretary of the United Nations Commission on International strengthening of economic and legal infrastructure in the in the Belt and Road Initiative (BRI) are contracting parties and the Trade Law, attended the CISG Conference ▲ The Secretary for Justice (L) signed the Memorandum of Understanding with the Executive Director of the region, and consolidates its leading role as an ideal hub CISG is already the universal standard by which parties of these APEC Secretariat, Dr Rebecca Fatima Sta Maria, (R) at a virtual signing ceremony on the establishment of the SELI sub-fund for deal-making and dispute resolution services. countries transact. The BRI can complement the reaching out of the CISG to the other countries, thereby creating a much broader rule- The Department further plans to initiate discussion with the Mainland based environment that provides legal certainty to all. on an arrangement for the mutual application of the CISG provisions to Hong Kong has spared no efforts in promoting the rule-based Mainland–Hong Kong sale transactions. trading system, and spearheading the application of the CISG to Hong Professor Dr Ulrich Schroeter, one of the distinguished speakers APEC Economic Committee 1st Plenary Meeting Kong. After consulting the public from March to September 2020, the at the conference and a renowned expert on the CISG, spoke equally Department has consolidated the feedback and proposes introducing highly of the CISG in simplifying contract formation and dispute a bill to the Legislative Council to implement the CISG in Hong Kong. resolution in the field of international sales. Commending the ever- On 4 and 5 March 2021, the Commissioner of the growing the CISG community joined by newly acceding contracting Inclusive Dispute Avoidance and Resolution Office of States, Professor Schroeter acknowledged the consultation and the Department, Dr James Ding, chaired the virtual proposed application of the CISG to Hong Kong as one of the important 1st plenary meeting of APEC’s Economic Committee milestones, “the outcome of which is awaited with great interest both which was attended by all 21 APEC member here in Hong Kong and the rest of the world”. He supplemented his economies, policy experts and representatives views in the webinar “Hong Kong Businesses and the CISG: The from the APEC Secretariat and international ‘Must Knows’ from International Court Practice” on 30 October 2020 organisations including Pacific Economic Cooperation co-organised by the Department and the AAIL. Professor Schroeter Council (PECC), Asian Development Bank and the shared the “must knows” from international court practice which have International Labour Organization. developed under the CISG, and addressed frequently litigated issues During the meeting, member economies under the CISG, particularly those relevant to Hong Kong businesses. expressed their appreciation of Hong Kong, China’s contribution of US$1 million and welcomed the establishment of the SELI sub-fund. Members also ▲ Participants at the virtual 1st plenary meeting of APEC’s Economic Committee, including Dr James Ding (1st row, had interactive and constructive discussions on the 1st L) and Acting Deputy Principal Government Counsel of the Rule of Law Unit, Michelle Fung (2nd row, 2nd R) representing Hong Kong, China administrative implementation work plan for the APEC
Collaborative Framework on ODR, the Enhanced APEC Agenda for Meeting, a milestone event of the Economic Committee held in June ▲ Mr Peter Wong (L) and Mr Adrian Lai (R), co-moderators of the CISG webinar, with the Structural Reform 2021-2025 and the Structural Reform Ministerial 2021. speaker, Professor Dr Ulrich Schroeter (centre)
20 21 Community Connections and Professional Development
Community Connections Update on AEF 2.0 Matching Grant for Skills Upgrading In line with the HKSAR Government’s second round of Anti-epidemic Fund measures for Matching Grant Scheme for Skills Upgrading, local law-related organisations were invited to apply for training grants to organise training programmes to enhance practitioners’ professional skills and Teacher Training by Endeavour Education Centre knowledge. Twelve training programmes have been approved and are expected to commence in 2021-2022. The Department of Justice supports the training course entitled “Respecting the Law, Reinforcing the Rule of Law” jointly organised School Mediation Seminar by the Endeavour Education Centre and the Education Bureau. The The School Mediation Seminar cum Prize Presentation Ceremony of the Mediation Essay Competition 2020 was held on 21 November 2020 course aims to assist primary and secondary school teachers to with the aim to promote peer mediation and the use of mediation at school. Themed “Mediate Your Way out of School Disputes”, the armchair enhance their understanding of topics such as the Constitution, the discussion in the seminar explored the common school disputes that could be mediated and how mediation could be used to prevent the escalation Basic Law, national security, Hong Kong’s legal system and the rule of school disputes from various perspectives. There was also a sharing session where winning students shared their views on resolving conflicts of law. The training course, first held in November 2020, was attended amicably. by 80 teachers. The overwhelming response led to the re-run of the course in March 2021 which was attended by 140 teachers. ▲
(L to R) Council Member of Endeavour Education Centre, Mr Andrew Fan; Political Assistant to the Secretary for Education, Mr Jeff Sze; Council Member of Endeavour Education Centre, Ms Elsie Leung; Secretary for Education, Mr Kelvin Yeung; Secretary Professional Development for Justice, Ms Teresa Cheng; Chairperson of Endeavour Education Centre, Mrs Rita Fan; Principal Assistant Secretary (Professional Development & Training) of the Education Bureau, Ms Lee Wai Ping,; and Council Member of Endeavour Education Centre, Ms Au King Chi National Studies Programme for Government Lawyers Premiere of the Rule of Law through Drama The Department of Justice (DoJ) regularly organises national study programmes with the support of the Hong Kong and Macao Affairs On 10 February 2021, the Department of Justice launched the “Rule of Law Office of the State Council. In October 2020, the Department co-organised for the first time with Tsinghua University a training course entitled “The through Drama” project under the “Vision 2030” initiative with an online premiere Fundamental Principles of Chinese Law” (「中國法基本原則課程」) comprising nine seminars delivered online by Tsinghua University comprising two sets of drama performances entitled “Xie Zhi: The Legend of professors. Recently the DoJ organised an online seminar for 80 counsel from the Department, other government departments and the Justice” and “The Adventure of Mr Auden”, for lower and upper primary school Legislative Council Secretariat, and a visit to the Mainland is planned following the pandemic. students respectively, to promote the proper understanding and practice of the rule of law through interesting performances and interactions with students. The premiere attracted about 400 viewers from over 100 schools and school Courses on WTO Dispute Settlement and International Investment Law sponsoring bodies, and will perform close to 100 shows for about 70 schools by To strengthen the HKSAR’s capacity to navigate the increasingly complex landscape of international economic law, the International Law
July 2021. ▲ Cast of "The Adventure of Mr Auden" Division launched two new training courses for counsel from January 2021: •WTO Dispute Settlement Course, conducted by the Geneva-based Advisory Centre on WTO Law Pilot Scheme on the Rule of Law Education for Secondary School Students •International Investment Law Course, presented by Professor Chin Leng Lim, Choh-Ming Li Professor of Law of the Chinese University of Hong To promote better understanding of the rule of law among students, the Department of Justice supports the launch of the “Pilot Scheme on the Kong and barrister at Keating Chambers, London. Rule of Law Education for Secondary School Students” by the Hong Kong Policy Research Institute (HKPRI). The HKPRI has partnered with 20 secondary schools in the 2020/21 school year to conduct workshops (which includes seminars and interactive group discussions) on the rule of law Workshops on the Procurement of Public Works Contracts for Form 1 and Form 4 students. Professionals from the legal and education sectors are invited to assist as facilitators at the workshops. The HKSAR Government procurement is underpinned by the principles of open and fair competition and transparency. To uphold these principles, government officers are trained in procurement rules, regulations and procedures. In November 2020, counsel of the Legal Advisory e-Resources for Rule of Law and Basic Law Launched Division (Works) spoke at a workshop series organised by the Development Bureau on the procurement of public works contracts, where they In November 2020, the website “e-Resources for the Rule of Law and Basic shared their knowledge on common legal issues in tender procedure and discussed case studies. Law” (basiclawresources.info) was launched. Developed by the Basic Law Foundation with the support of the Department, the website provides a series of teaching materials on the Constitution, the Basic Law and rule of law for secondary school teachers to deploy in their teaching. Besides, monthly online seminars on different topics are held to enhance teachers’ knowledge of rule of law education. The first seminar was successfully held Access to e-Resources for on 5 February 2021. the Rule of Law https://www.basiclawresources.info and Basic Law
22 23 Useful Information
Notable Judgments in Civil Cases Notable Judgments in Criminal Cases
Country Parks Ordinance HKSAR v Lai Chee Ying [2021] 24 HKCFAR 33 Court sentences overturned in all sentence review applications CHAN KA LAM v THE COUNTRY AND MARINE PARKS AUTHORITY [2020] HKCFA 33 The case concerns the proper interpretation and application Between October 2020 and March 2021, the Department of of Article 42(2) of the Law of the People’s Republic of China Justice lodged 11 sentence review applications with the Court of The final appellate court’s judgment on 12 October 2020 Country Parks Ordinance (Cap. 208) in relation to designation of on Safeguarding National Security in the Hong Kong Special Appeal under section 81A of the Criminal Procedure Ordinance, all of provided important guidance on the statutory duty on the part of the enclaves in country parks. Administrative Region. which related to cases of public order events. In all these cases, the Authority to consult the Country and Marine Parks Board under the Article 42(2) provides that “No bail shall be granted to a criminal Court of Appeal increased the sentences imposed upon review. suspect or defendant unless the judge has sufficient grounds for In SJ v CMT & Anor [2021] 1 HKLRD 1, SJ v Chung Ka Ho [2020] New Territories Small House Policy believing that the criminal suspect or defendant will not continue HKCA 990, SJ v Yu Ka Kui [2020] HKCA 1019 and SJ v Yuen Chi KWOK CHEUK KIN & ANR v DIRECTOR OF LANDS, to commit acts endangering national security”. The Court of Final Shing [2020] HKCA 1054, the Court applied the principles set out in SJ SECRETARY FOR JUSTICE & HEUNG YEE KUK (INTERESTED PARTY) [2021] HKCA 54 Appeal held that Article 42(2) creates a specific exception to the v Wong Chi Fung case (2018) 21 HKCFAR 35 and emphasised the general rule in favour of bail. The starting point is significantly importance of punishment and deterrence in cases regarding large- On 13 January 2021, the Court of Appeal ruled that the “Ding under Article 40 of the Basic Law entitling constitutional protection different and it introduces a considerably more stringent threshold scale unlawful assembly. Rights” under the Small House Policy are lawful traditional rights in full, despite their inherently discriminatory nature. requirement: it is “no bail unless there are sufficient grounds to As to young offenders, the Court of Appeal reiterated the principles and interests of the indigenous inhabitants of the New Territories believe violation will not occur”. propounded in SJ v SWS [2020] HKCA 788 that where “as a matter of Doxxing Activities In applying the test under Article 42(2), the court must first public interest, the seriousness of the offence and the circumstances decide whether it “has sufficient grounds for believing that the of the case call for a heavy or deterrent sentence, the offender’s young SECRETARY FOR JUSTICE v CHAN OI YAU RIYO [2020] HKCFI 1194 criminal suspect or defendant will not continue to commit acts age and personal background would count very little or even pale into SECRETARY FOR JUSTICE v CHENG LAI KING [2020] HKCFI 2687 endangering national security”. The court should consider everything insignificance, because the need for a punitive or deterrent sentence SECRETARY FOR JUSTICE v CHAN KIN CHUNG [2020] HKCFI 3147 that appears to be relevant to making that decision, including far outweighs the rehabilitative need of the offender”. SECRETARY FOR JUSTICE v YIU KA YU [2020] HKCFI 3148 materials which would not be admissible as evidence at the trial. It is important for members of the public to understand the Since 2019, police officers, judges and their families have months. This includes considering whether there are substantial grounds for sentencing principles which apply to cases of unlawful conduct during become targets for doxxing. As guardian of public interest, the The Court emphasised that the normal penalty for breaches believing that the accused would fail to surrender to custody, or commit public order events and possible serious consequences of committing Secretary for Justice obtained injunctions restraining such doxxing of injunctions is imprisonment measured in months. Freedom of an offence (not limited to national security offences) while on bail, or such offences without regard to the life and property of the public as it activities and commenced contempt proceedings against those who speech does not exist in a vacuum, but comes with responsibilities interfere with a witness or pervert or obstruct the course of justice. is emphasised in SJ v SHY [2021] 1 HKLRD 682. blatantly disobeyed the injunctions. to respect others’ rights. Doxxing is inherently deeply unattractive Application As of March 2021, four persons have been found guilty of and itself capable of constituting criminal activity. It has a chilling Original sentence Sentence upon review allowed? contempt for breaching the police doxxing injunction: one was effect on society, intimidating individuals into silence. The impact of 1st Respondent: 12-month probation sentenced to 21 days of immediate imprisonment and three were doxxing on victims is severe and long-lasting, and such conduct is 1. SJ v CMT & Another [2021] 1 HKLRD 1 Charge dismissed and CP orders 2nd Respondent: sentenced to 21 to 28 days of imprisonment suspended for 12 not to be tolerated in a civilised society. 80 hours of community service 2. SJ v Chung Ka Ho [2020] HKCA 990 120 hours of community service 3 months’ imprisonment Power to Make Emergency Regulations is Constitutional and 3. SJ v Yu Ka Kui [2020] HKCA 1019 2 weeks’ imprisonment 7 months’ imprisonment 4. SJ v Yuen Chi Shing [2020] HKCA 1054 6 weeks’ imprisonment 9 months’ imprisonment Essential and the Prohibition on Face Covering Regulation is Lawful 5. SJ v SHY [2021] 1 HKLRD 682 12-month probation 120 hours of community service KWOK WING HANG AND OTHERS v CHIEF EXECUTIVE IN COUNCIL AND ANOTHER 6. SJ v Kung Yat Kan, Clifford [2020] HKCA 907 12-month probation 30 days’ imprisonment LEUNG KWOK HUNG v SECRETARY FOR JUSTICE AND ANOTHER [2020] HKCFA 42 7. SJ v LHY [2021] HKCA 155 12-month probation Rehabilitation Centre The Court of Final Appeal unanimously ruled that (i) the The Court of Final Appeal also found that: (i) ERO empowered 8. SJ v CWC [2021] HKCA 166 3-year probation Training Centre Emergency Regulations Ordinance (ERO); and (ii) the Prohibition CEIC to enact subsidiary legislation in times of emergency or public 9. SJ v Chan Lincoln [2021] HKCA 255 12-month probation Rehabilitation Centre
on Face Covering Regulation (PFCR) which prohibited the wearing danger. Such power and any regulation so made were subjected 10. SJ v Szeto Ho San [2021] HKCA 156 10 days’ imprisonment 3 months’ imprisonment of facial coverings at public meetings and processions, were to meaningful controls including the requirements in ERO and 11. SJ v Lee Ping Hei & Another [2021] HKCA 293 3 months’ imprisonment 10 months’ imprisonment constitutional. It is a definitive ruling that the Chief Executive in the Basic Law, judicial control and legislative control; (ii) PFCR Notable judgments refer to cases that involve important legal principles or issues of public interest. The summaries of notable judgments For more details: Council (CEIC) has wide and flexible powers to enact subsidiary was a proportionate response on the part of the Government, are prepared by the Department of Justice based on its own interpretation and understanding of the judgments of the courts concerned. The legislation under ERO in situations of emergency or public danger, having balanced the interests of a range of different people and, in summaries are not legal advice and should not be relied upon by anyone as such. The summaries have no legal effect and are not intended to be cited as authorities of any kind. To fully understand the legal effect of the courts' judgments, the whole judgments of the courts concerned which is essential and lawful. particular, the interests of Hong Kong as a whole. should be looked at. Copyright in this publication is vested in the Government of the Hong Kong Special Administrative Region. This publication may not be reproduced in whole or in part without the written permission of the Government of the Hong Kong Special Administrative Region. 24 25 JUSTICE IN FOCUS ISSUE ONE 2021
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