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 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.
As part of the response to the COVID-19 pandemic, employers have had to collect and disseminate information about their employees. This has given rise to concerns regarding data privacy. The privacy commissioner for personal data recently issued guidelines for employers on the collection, processing and use of personal data during the COVID-19 pandemic.
The High Court recently allowed a defendant's application for the release to him of a sum of money paid into court by the plaintiffs in order to fortify an asset freezing injunction that the plaintiffs had obtained against (among others) the defendant. The case reviews some interesting legal issues with regard to Quistclose trust claims in the context of payments into court. It also draws attention to the status of money paid into court for the purpose of fortifying an undertaking as to damages once that purpose becomes spent.
A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
The High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response code. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants.
The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.
Given the severity of the 'fourth wave' of COVID-19 which Hong Kong is currently experiencing, it became inevitable that the government would roll out tougher social distancing measures and that the courts would follow suit. On 1 December 2020 the judiciary issued its latest notification for stakeholders about the general arrangement of court and registries business. The courts and their registries very much remain open for business, but they are not dropping their guard.