On 28 February 2017, the SPC published the Arrangement between the Courts in the Mainland and the Hong Kong Special Administrative Region on Mutually Entrusted Taking of Evidence in Civil and Commercial Matters, which took effect from 1 March 2017.
The arrangement represents the latest in a series of reciprocal judicial arrangements between the Mainland and Hong Kong, and permits mutually entrusted taking of specified forms of evidence in civil and commercial matters between both sides with a letter of request (“LoR”) addressed from one side to the other.
An entrusted taking request must be raised through designated liaison authorities of both sides, which means:
- Higher People’s Courts for the Mainland.
- The Administrative Wing of the Chief Secretary for Administration for Hong Kong.
Under the arrangement, evidence may be taken in accordance with the laws of the requested party’s jurisdiction, and may only be used for the particular case specified in the LoR.
With the consent of a requested party, the judicial officials of a requesting party, as well as the parties and their legal representatives, may attend the taking of evidence.
The taking of evidence must be completed as far as practicable within six months from the date when the requested party receives the LoR.
Robert Pe, Partner, Gibson Dunn, Hong Kong
“Taking evidence in Mainland China for use in proceedings outside the Mainland has historically been fraught with difficulties. The conduct of depositions for use in overseas proceedings is prohibited. Much publicised and broadly drafted state secrets laws mean it is risky to take documents out of the Mainland. This new arrangement is therefore to be welcomed and further strengthens Hong Kong’s position as the natural venue for the resolution of commercial disputes arising from investments in the Mainland.”
General Counsel for clients involved in disputes with Mainland (or Hong Kong) counterparties will want to be aware of the reciprocal arrangement generally and work with trial counsel to consider any tactical advantages presented by the arrangement.