It is trite law that the Hong Kong courts will not enforce a foreign arbitral award if it amounts to indirect enforcement of foreign laws. In the context of tax law, a defence known as the 'tax gathering' defence exists, under which a foreign award will not be enforced if it would, in effect, help foreign states to collect taxes. However, the requirements of this defence have been unclear. Now, a recent case has affirmed that an unsatisfied tax claim is a prerequisite for the tax gathering defence.
The Hong Kong courts' pro-arbitration attitude is evident from the continuous refinement of their dispute resolution mechanism. Such efforts are distinctly remarkable in commercial contexts, as demonstrated by the dynamics between the statutory company regime and the arbitration regime. Observing such intriguing interplay between the two regimes, this article examines recent decisions in disputes arising from corporate affairs and disputes relating to insolvency.
In September 2019 the Judicial Committee of the Supreme People's Court adopted the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (MAA). Pursuant to the MAA, a mainland court recently assisted the Hong Kong International Arbitration Centre (HKIAC) in an arbitration which had been referred to it by the HKIAC.