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.
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.
The Court of Appeal recently reviewed what appears to have been a novel point regarding which party in civil proceedings has the burden of proving that a witness is competent to give evidence at the time of giving evidence. The decision of the first-instance judge and Court of Appeal on the principal point in dispute accords with what is the commonly held understanding – namely, that it is for the party calling a witness to prove (if challenged) that their witness is competent.
In a recent case, the Court of First Instance ordered a bank to disclose certain records that it held relating to two of the defendants. In this judgment, the court noted not only that there were cost efficiencies to be had by providing electronic disclosure, but also that banks should not in effect be making a profit from complying with disclosure orders. While, in this instance, the plaintiff had agreed to pay the bank's costs, the amount of those costs (per account and per page) appears to have raised judicial eyebrows.
In a recent case, the Court of Appeal allowed the defendant's appeal against a lower court's finding that he had made a false statement of truth with respect to an admission in a defence filed on behalf of a company. As is normal in such appeals, the Court of Appeal was reluctant to disturb a lower court's primary finding. However, in this case, the Court of Appeal considered that the lower court had been plainly wrong to make an order for committal for contempt of court.
The High Court recently released a party from an implied undertaking not to use documents for a collateral purpose. In this case, the documents in question had been provided by the second respondent to the police in support of its criminal complaint against the applicant. The case serves as a useful reminder of some general principles in an area of practice that can cause problems for the unwary.