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.
The COVID-19 pandemic has undoubtedly changed the way in which businesses are run and to a certain extent normalised remote-working arrangements. The Office of the Privacy Commissioner for Personal Data recently issued three guidance notes relating to working-from-home arrangements. This article summarises the guidelines' key recommendations for employers and employees, particularly with regard to the use of videoconferencing software.
The recently passed Employment (Amendment) Bill 2019 will introduce changes to the Employment Ordinance (Cap 57) which are expected to come into force by the end of 2020. This article examines the main changes, including the extension of statutory maternity leave for permanent employees, changes to statutory maternity leave following a miscarriage and the relaxation of sickness allowance requirements for medical exams during pregnancy.
In June 2020 the Occupational Retirement Schemes (Amendment) Ordinance took effect. It enhances the existing powers under the Occupational Retirement Schemes Ordinance (ORSO) to ensure that ORSO schemes regulated under the ordinance are genuinely employment-based retirement schemes. It also looks to improve the governance of the schemes.
In June 2020 the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into effect. The enhanced protections commenced with immediate effect, save for those relating to breastfeeding, which are expected to come into force on 19 June 2021. As a result, the existing anti-discrimination ordinances have been or will be amended to extend protection against discrimination on the ground of breastfeeding and strengthen protection against unlawful discrimination and harassment.
In response to the COVID-19 pandemic, the government introduced an HK$80 billion Employment Support Scheme to provide a wage subsidy to eligible employers for six months in exchange for them refraining from making any redundancies during the subsidy period and using the subsidy to pay employees' wages. The government recently announced the introduction of a third round of the anti-epidemic fund. The HK$24 billion package will assist specific industries and people who are most affected by the pandemic.
The Court of Appeal recently had the opportunity to review some important points of practice regarding appeals against first-instance judgments – in particular, with respect to applications to extend time to appeal and to stay execution of judgments pending an appeal. While a short delay (which can be adequately explained) in serving a notice of appeal may not be fatal, a substantial delay of weeks or months is another matter.
Trial dates are regarded as 'milestone dates' for civil litigation and are therefore immovable, save for 'exceptional circumstances'. In such circumstances, the courts have a discretion to adjourn a trial. An exercise of such discretion involves balancing the prejudice suffered by the parties, as a result of an adjournment, with the primary aim of securing a just resolution of a dispute in accordance with their substantive rights. In a recent case, the unexpected death of the plaintiff justified an adjournment of the trial.
The Court of First Instance of the High Court recently reviewed the legal principles that underpin the protection afforded to without prejudice communications. The court's decision makes it clear that for a communication to be without prejudice, there must be a dispute in existence, as well as a genuine attempt at settlement – an issue that a court determines applying an objective (reasonable person) test. Mere negotiation without more is not enough.
The Court of Appeal recently refused a defendant (who resides outside Hong Kong) permission to appeal a trial judge's decision not to allow her to give evidence by videoconferencing facilities at trial. Apparently, the defendant had been reluctant to travel to Hong Kong from Beijing (where she resides) to attend the trial because of concerns about the COVID-19 public health pandemic. Both the trial judge and the Court of Appeal appear to have been unimpressed by the defendant's application.
In A1 v R1 a novel point appears to have arisen as to whether the High Court could grant Norwich Pharmacal relief in relation to the disclosure of documents and information concerning a bank account held not in Hong Kong but with the overseas branch of a Hong Kong bank. The Court of First Instance decided that it did have such power and, in doing so, reviewed the usual procedures for the grant of Norwich Pharmacal orders against a bank and the general principles that underpin ex parte applications.