Consultation Paper on the 2016 Preliminary Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters

In October, the Department of Justice (“DoJ”) released a consultation paper on the 2016 Preliminary Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Draft Convention”) for public comment.

The Draft Convention focuses on recognition and enforcement of judgments between Contracting States. It seeks to set out the minimum requirements for the courts of one Contracting State to recognise and enforce a judgment rendered in another Contracting State. It is said that if the criteria set out in the future convention are met, the judgment must be recognised and enforced. However, if the criteria are not met, it would be open to the State addressed to decide whether the judgment should be recognised and enforced under its domestic law, except matters regarding intellectual property and immovable property.

The Draft Convention was prepared by the Special Commission of the Hague Conference on Private International Law (“Special Commission”) at its meeting in June 2016 and will be further discussed at the second meeting of the Special Commission in February 2017.

According to the DoJ, comments received will be taken into account in formulating HKSAR’s position on the various issues and may be reflected in the coordinated position of China in preparation of the second meeting of the Special Commission in February 2017. The HKSAR Government will consider the question of application of the Convention, if finalised, to the HKSAR.

The Council has reviewed the consultation paper with the assistance of various specialist committees. The Law Society takes notice of the rationale underlining the Draft Convention which embraces overarching and general principles relating to recognition and enforcement of foreign judgments; however, it wonders if it is premature to have a view on whether it is in the overall interest of the HKSAR to have the Convention, if finalised, extended to the HKSAR. The Law Society’s detailed comments are available at http://www.hklawsoc.org.hk/pub_e/news/submissions/20161206.pdf.

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