International Commercial Court and Article 8 of Lawyers Law

The Council of the Law Society pays a courtesy visit to the relevant authorities and institutions in Beijing every year. The visit offers a valuable opportunity for Council members to have a face-to-face interactive exchange with Mainland officials on the issues facing the solicitors’ profession in Hong Kong.

15 Council members joined the Beijing visit this year on 9 and 10 April.

As always, there is so much to do, but so little time. Within the limited time frame of our stay in Beijing, we focused most of our discussions on exploring new opportunities for our members in the Mainland. These discussions were naturally centered around the Belt and Road Initiative and the development of the Great Bay Area.

It was reported in the press earlier this year that a new dispute resolution system to handle commercial disputes arising from the Belt and Road Initiative would be introduced in the Mainland. The proposal was for the Supreme People’s Court to set up three international commercial courts in separate cities, namely, one in Xian to handle the land-based Silk Road Economic Belt, a second one in Shenzhen to deal with cases from the Maritime Silk Road and a third as headquarters in Beijing.

There appears to be a recent trend in establishing international commercial courts. Examples can be found in four jurisdictions including the Dubai International Financial Centre Courts, the Qatar International Court, the Abu Dhabi Global Market Courts and the Singapore International Commercial Court. One unique feature of these courts is that they operate differently from the domestic courts in the same jurisdiction. They permit judges from foreign jurisdictions to serve on the Bench. The commercial disputes heard in these courts often involve foreign litigants and transnational and cross-border disputes. The rules and procedures adopted in the proceedings often have little or no connection to those adopted in the domestic courts in the same jurisdiction. Further, foreign lawyers have greater rights of audience than in the domestic courts, so in some cases, the parties, counsel and judges may all be from different jurisdictions.

The obvious justification for the establishment of such an international court is that the traditional judicial system that is used to serving a single domestic jurisdiction is no longer sufficient to deal with the rise of international disputes involving multi jurisdictions.

Hong Kong practitioners trained in the common law system that most international investors are familiar with will have a significant role to play. During our visit to the Supreme People’s Court in Beijing on 10 April, we conveyed our keen interest in and what Hong Kong solicitors can offer in the development of the international commercial courts in the Mainland. According to the Supreme People’s Court, the proposal on the international commercial courts is being finalised and is expected to be published around June 2018. The Law Society will keep a close watch on the development.

“One Country, Two Systems” is a unique concept that allows two different legal systems to co-exist. There is a strong consensus in Hong Kong that there should be continual respect between the two legal systems, while the distinctiveness of the common law tradition should be maintained in Hong Kong under the Basic Law. This harmony can only be achieved with a thorough mutual understanding of how and why each other’s system works. The maintenance of this harmony is crucial, in particular when there will be increasing collaboration between the two jurisdictions, for instance, in the development of the Great Bay Area.

With respect to the legal sector, an effective way to facilitate a deeper understanding of each other’s system is to qualify into the legal profession of the other jurisdiction. In Hong Kong, the Overseas Lawyers Qualification Examination (‘OLQE’) is in place to enable a legal practitioner qualified outside Hong Kong to sit an examination on specified subjects to gain admission as a Hong Kong solicitor without having to go through the trainee solicitor route as in the case of a law graduate. This gives due recognition to the overseas legal qualification and experience of the candidates. In the process of studying and training for admission as a Hong Kong solicitor, an overseas lawyer will become fully conversant with the laws and legal practice requirements of Hong Kong.

There is no similar reciprocal arrangement for Hong Kong solicitors to qualify as Mainland lawyers. The Law Society has been advocating the application of Article 8 of PRC’s Lawyers Law or other similar mechanism to put in place an OLQE equivalent for Hong Kong solicitors who have relevant experience in the much needed practice areas of, for instance, international law, securities law and others. There is no better way to incentivize Hong Kong people to actively gain a better understanding of the Mainland legal system.

We reiterated this proposal to the Ministry of Justice (‘MoJ’) during the recent Council’s visit to Beijing with specific reference to the Great Bay Area where there will be increasing collaboration among members of the legal profession in the two jurisdictions. The practice of a Hong Kong solicitor as a Mainland lawyer qualified under Article 8, we proposed, can be limited to the Great Bay Area at the initial stage. The MoJ has noted the proposal and will consider the issues that may arise from it. These reforms will no doubt take time and we will continue lobbying for this.

Apart from the above, another major area that we will follow up after the Beijing visit is the invitations we received from the State-owned Assets Supervision and Administration Commission (‘SASAC’) and China Federation of Industrial Economics (‘CFIE’) to nominate speakers at the seminars that they will organise during the coming months. The opportunities to speak at these seminars before audiences of state-owned enterprises and industrial associations and enterprises are valuable for the purpose of promoting Hong Kong’s legal profession to a vast pool of potential legal service users.

Last but not the least, the Law Society also took the opportunity to exchange views with the Beijing authorities on the development of legal aid and media reports on the arrests of human rights lawyers in the Mainland, as well as the position of the Law Society on the co-location issue with reference to the Law Society statement on 18 January 2018.

Jurisdictions: 

President, The Law Society of Hong Kong