Since as early as 2003 after the signing of the main text of the Mainland and Hong Kong Closer Economic Partnership Arrangement ("CEPA") on 29 June 2003, the Law Society has been lobbying for reciprocal recognition of the practice experience of Hong Kong solicitors for the purpose of sitting the legal qualifying examination in the Mainland, the State Judicial Examination, so that they are eligible to sit the examination and to apply for exemption from sitting certain relevant subjects based on their practice area. This mechanism is similar to the recognition given to lawyers admitted in non-common law jurisdictions (including Mainland lawyers) when they sit the Overseas Lawyers Qualification Examination ('OLQE") in Hong Kong.
The proposal was further refined in 2004 to model on the OLQE, where a special examination was suggested for eligible Hong Kong solicitors taking into account their practice experience and targeting the practice areas in demand in the Mainland market. We raised the proposal at every opportunity with the Beijing authorities and included it in every CEPA wish list. With the development of the Greater Bay Area, the Law Society further refined the proposal and suggested a pilot scheme could perhaps start in the Greater Bay Area (“GBA”).
We were so pleased to learn that our proposal had been accepted in principle when the Central Government announced on 6 November 2019 that eligible Hong Kong legal practitioners, upon passing a special examination, will be qualified to practise in specific areas of Mainland law in the nine Mainland cities of the GBA. The Law Society's years of lobbying on this matter have come to fruition.
This is a much welcomed breakthrough as it provides an avenue to enable experienced Hong Kong lawyers in identified practice areas to qualify as Mainland lawyers. It helps strengthen their ability to expand their services into the GBA, a vast market with huge business potentials. It also helps expand the talent pool to support the growing demand of multi-jurisdictional legal services in the Mainland.
We have been eagerly awaiting further details on the implementation of the special examination. Finally, following the decision of the Standing Committee of the National People's Congress on 11 August 2020 to formally authorise the State Council to follow up on the proposal, the State Council publicly released the details regarding the pilot measures on 5 October 2020 (“Pilot Scheme”).
The Pilot Scheme relates to both Hong Kong and Macao and runs for a period of three years. The major provisions are highlighted below for those who are interested to build a deeper understanding of the Mainland legal system in operation and to gain an additional qualification at the same time.
With reference to Hong Kong, those who satisfy the following criteria will be eligible to sit the special examination:
(a) permanent Hong Kong residents who are Chinese citizens;
(b) uphold the constitution of The People’s Republic of China and the Basic Law;
(c) solicitors and barristers admitted by the High Court of Hong Kong and properly registered respectively on the roll of solicitors and the roll of barristers, and have not been suspended from practice;
(d) have 5 years’ or above post-qualification practice experience;
(e) good professional ethics and no disciplinary records for professional misconduct or bad reputation;
(f) able to write legal documents in Chinese and conduct business activities in Mandarin.
The Ministry of Justice (“MoJ”) will be in charge of the implementation of the Pilot Scheme, supervising closely the Department of Justice of the Guangdong Province to handle the registration, preliminary screening of candidates on their eligibility, as well as the training and the detailed administration of the examination which will be held in Shenzhen.
Candidates are required to join and complete the training organised by the MoJ before they can sit the examination. After passing the examination, candidates have to undergo further training and assessment organised by the Guangdong Lawyers Association before they are eligible to apply for approval to practise in the GBA.
Once qualified, the “GBA lawyers” can practise Mainland law to deal with civil and commercial legal matters (including litigation and non-litigation matters) in the nine Mainland cities within the GBA in accordance with the scope set out in the Pilot Scheme. For non-litigation matters, there must be some association with the GBA including, for example, the place of domicile of the parties, the subject matter of the contract, or the place where the contract is performed must be in the nine cities of the GBA.
The “GBA lawyers” will be required to join as members of the local Mainland lawyers’ associations as well as the All China Lawyers Association. They can be employed by the Mainland law firms or the partnership associations between Hong Kong/ Macao law firms and Mainland law firms in the nine Mainland cities in the GBA. They, however, cannot be employed by the representative offices of Hong Kong / Macao / foreign law firms in the Mainland.
This is a valuable opportunity for legal practitioners in Hong Kong and Macao to tap into the GBA market. The Law Society will actively consider ways to assist members who are interested in grasping this chance to expand their practice to the GBA. If members have any comments, please send to email@example.com.
Melissa K Pang, President