Bryan Cave Leighton Paisner (JD Supra Hong Kong)
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HK Court of Appeal confirms the exceptional nature of the taking of evidence by way of video conferencing facilities
Amidst the COVID-19 pandemic, various travel restrictions and quarantine requirements remain in place. As the Hong Kong Judiciary recognises in the Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 3: Wider Video-Conferencing Facilities and Telephone), the public health situation “may impact the ability of witnesses and other participants to travel to and appear in...
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Construction of lease in relation to tenant's obligation to reinstate
Disputes often arise about the extent of a tenant’s obligations to reinstate the leased premises at the conclusion of the lease. Large sums of money can be involved.
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Recent Hong Kong Court decision on a bank’s liability on its employee’s fraudulent conducts
What happens when a Bank’s customer loses money due to a fraud perpetrated by an employee of the Bank? What, if any, remedies does the defrauded customer have against the Bank?
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Development of LawTech in Hong Kong
First things first. What is “LawTech”? “LawTech” is an increasingly common buzzword in the legal sector. The Law Society of England and Wales defines “LawTech” as “technologies that aim to support, supplement or replace traditional methods for delivering legal services, or that improve the way the justice system operates”.
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Security of Payment in Hong Kong - pilot programme for public works contracts
As the old saying holds, cash-flow is the life blood of the construction industry. In 2021, Hong Kong looks set to join Singapore, Australia and other jurisdictions in implementing a Security of Payment regime to regulate payment practices and provide a system to protect cash flow in the construction industry.
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Part 3 of 6: Amendments to Hong Kong Data Protection Law Regarding the PCPD’s Sanctioning Powers
To enhance protection of personal data protection, the Hong Kong government currently is considering to raise the level of fines for offences under the Personal Data (Privacy) Ordinance and exploring the feasibility of imposing administrative penalties for contravention of the PDPO. This article sets out more details of these proposed amendments and what businesses need to know...
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Mutual Enforcement of Arbitral Awards between the Mainland and Hong Kong: the Arbitration (Amendment) Bill 2021
On 24 February 2021, the Hong Kong Government introduced into the Legislative Council the Arbitration (Amendment) Bill 2021 (“Bill”), to implement the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (the “Supplemental Arrangement”). Background the Supplemental Arrangement - In our earlier blog...
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Hong Kong court confirmed examination orders can be served on officers of corporate judgment debtors out of jurisdiction
When seeking to enforce a judgment against a company, one part of the enforcement process is to compel the officers of the company to submit to formal questioning about the financial affairs of the company. But what to do if the company officers are located overseas?
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HK Court confirms Labour Tribunal has no jurisdiction over mixed claims founded in both contract and tort
The Labour Tribunal in Hong Kong has jurisdiction over a claim of money arising from the breach of a term of an employment contract. However, mixed claims founded in both contract and tort are excluded from the jurisdiction of the Labour Tribunal. This recently was confirmed in the Court of First Instance (Court) case of Lee Yiu Hong v Well-In Hotel Supplies Company Limited [2020] HKCFI 2760.
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NEC4 X22: ECI for an Asian context?
Updates to NEC4 optional clause X22 – Early Contractor Involvement and its suitability for use in HK, Singapore and elsewhere in Asia. In October 2020, NEC issued amendments to the NEC4 suite.
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Attempt to resist enforcement of a PRC arbitral award in Hong Kong, by arguing that the arbitration agreement was tainted by forgery
Shenzhen Honeycomb System Co Ltd v HCT Technologies (Hong Kong) Co Limited (HCCT 20/2019, [2020] HKCFI 3175, 31 December 2020) confirms the Hong Kong court’s pro-arbitration and pro-enforcement approach. The case involved how the Hong Kong Court of First Instance (the “Court”) approached an attempt to resist enforcement of an arbitral award obtained in Mainland China on the basis of the award...
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Hong Kong court refuses to uphold an arbitral award for enforcement on grounds of excess of authority and denial of a fair hearing
In X v Y (HCCT 62/2018) [2020] HKCFI 2782 (Date of Decision: 5 November 2020), the Hong Kong Court of First Instance (the Court) set aside an order to enforce an arbitration award on the basis (i) that the tribunal’s findings were beyond the scope of the arbitration clause and the parties submission to arbitration, and (ii) that the respondent in the arbitration had not been given a reasonable...
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The relationship between cheques (and other bills of exchange) and arbitration clauses
In T v W (HCA 366/2020, [2020] HKCFI 2918), the Hong Kong Court of First Instance considered the interesting question of whether a claim made on a dishonoured cheque was caught by and fell within the application of an arbitration clause in the underlying loan agreement in respect of which the cheque was issued. The Loan Agreement and the Cheque - On 22 March 2019, the Plaintiff (as the...
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HK Court reluctant to grant EOT for setting aside an arbitral award
The recent case of A v D (HCCT 52/2020) reinforces the pro-arbitration and pro-enforcement approach of Hong Kong courts. Under Article 34 (3) of the Model Law (adopted by section 81 of the Arbitration Ordinance (“Ordinance”)), an application for setting aside an arbitral award may not be made three months after the applicant received the award.
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Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and Hong Kong
On 27 November 2020, the Department of Justice of Hong Kong and the Supreme People’s Court of China signed the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (the Supplemental Arrangement). The Supplemental Agreement amends and clarifies the Arrangement Concerning Mutual Enforcement of Arbitral...
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Updates on U.S. sanctions affecting parties in Hong Kong and China - December 2020
Following our recent Client Alert published in October 2020 on the release of the Section 5(a) Report under the Hong Kong Autonomy Act of 2020 (“HKAA”), there have now been some further updates in relation to U.S. sanctions affecting parties in Hong Kong and China which we discuss below.
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Potential liability for contempt of court of signers of inaccurate statements of truth
We all have had to arrange clients to sign the required “statement of truth” concerning the contents of pleadings in court proceedings. Some arbitrators are directing similar signed statements on statements of case and memoranda in arbitrations.
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Hong Kong sees the first disqualification order under its Competition Ordinance
Under the Competition Ordinance, the Hong Kong Competition Tribunal (“Tribunal”) may, on application by the Competition Commission (“Commission”), impose a disqualification order prohibiting a person from being a director, liquidator or provisional liquidator of a company, a receiver or manager of a company’s property, or taking part in the promotion, formation or management of a company. The...
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Adverse costs order against a party who unreasonably has refused to engage in mediation
A recent Hong Kong judgment where the court made an adverse costs order against a party who unreasonably has refused to engage in mediation. This article discusses about the implications of this judgment, in particular on parties’ obligation to attempt to engage in mediation and solicitors’ duty to advise their clients of possible alternative dispute resolution processes.
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Hong Kong Government’s Policy Address 2020
This year’s Policy Address was delivered today (25th November 2020) amidst the backdrop of a changing and dynamic environment. The Chief Executive (“CE”) has set out a variety of key initiatives to address the city’s land and housing supply, infrastructure, the environment, collaboration with the Greater Bay Area (“GBA”), and HK’s ongoing role as an international financial center.
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HK Court confirms narrow scope of defence available to proprietors under the Factories and Industrial Undertakings Ordinance
In HKSAR v Gammon Construction Limited (HCMA 97/2019) [2020] HKCA 752 (Date of Judgment: 7 September 2020), the Hong Kong Court of Appeal (the “Court”) dismissed a magistracy appeal against the conviction of a principal contractor (the “appellant”) involved in a fatal industrial accident. In this judgment, the Court held that...
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Enforcing an arbitration award: don’t mislead the court!!
In 1955 Capital Fund I GP LLC & another v Global Industrial Investment Limited [2020] HKCFI 956, the court set aside an ex parte order for the enforcement of an arbitral award on the grounds of material non-disclosure by the applicants. This decision is a reminder to parties that they should ensure compliance with the enforcement procedures under the Arbitration Ordinance, and make full and...
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Amendments to Hong Kong Data Protection Law Regarding Data Retention Policy: requirement for a clearly stated retention period - Part 2 of 6
The Hong Kong Government currently is reviewing and putting forward possible amendments to the Personal Data (Privacy) Ordinance (“PDPO”) with a view to strengthening the protection for personal data. One of the amendments proposed is to require data users to formulate a clear data retention policy which specifies a retention period for the personal data collected.
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Important Changes to HK Data Protection Law Under Way - Part 1 of 6
The Hong Kong Government currently is reviewing and putting forward possible amendments to the Personal Data (Privacy) Ordinance (“PDPO”) with a view to strengthening the protection for personal data. Multiple areas of the data protection law are expected to be changed, the better to align with the standards set by the General Data Protection Regulation (“GDPR”) of the European Union. Businesses...
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Competition Tribunal adopts the Carecraft procedure for settlements in competition law cases
In Competition Commission v Kam Kwong Engineering Company Ltd & others [2020] HKCT 3, the Competition Tribunal (the “Tribunal”) adopted the Carecraft procedure for disposing of enforcement proceedings against respondents who admit liability for contravention of competition rules under the Competition Ordinance (Cap. 619) (the “Ordinance”).
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HK Court explains principles regarding correction of arbitration awards
In SC v OE1 (HCCT48/2019) [2020] HKCFI 2065 and OE1 v SC (HCCT66/2019) [2020] HKCFI 2065 (Date of Decision: 24 August 2020), the Hong Kong Court of First Instance (the “Court”) dismissed an application to set aside an arbitration award and allowed an application to enforce the award. In doing so, Hon Mimmie Chan J explained the principles regarding the correction of awards under Article 33 of the
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HKIAC updates on the implementation of the Interim Measures Arrangement between Hong Kong and the PRC
HKIAC recently published information regarding the processing of applications under 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” signed between the Hong Kong Government and the PRC Supreme People’s Court.
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HK Court upholds entitlement to guaranteed bonus and disallows employer set off
In the case of Xu Yi Jun v GF Capital (Hong Kong) Limited (CACV 502 & 577 / 2019) (Date of Judgment: 6 August 2020), the Hong Kong Court of Appeal (the “Court”) considered (i) the employee’s entitlement to a guaranteed bonus (“Bonus”), and (ii) the employer’s argument that it was entitled to set off its unliquidated claim for damages for breach of contract and implied duties, against the Bonus.
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Hong Kong court approves novel method of ordinary service in Hwang Joon Sang & another v Golden Electronics Inc. and Ors [2020] HKCFI 1084
Two recent Hong Kong judgments demonstrate the continuing (and welcome) embrace of technology by Hong Kong courts. In the recent decision of Hwang Joon Sang & another v Golden Electronics Inc. and Ors [2020] HKCFI 1084, the Court of First Instance granted the plaintiff’s application for service by access to a data room.
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Impact of arbitration clauses on insolvency proceedings: a retreat from the Lasmos Approach?
Recent Hong Kong cases have highlighted varying approaches regarding the impact of arbitration clauses on insolvency proceedings, in particular, on the Court’s discretion to make a winding-up order where a debt is disputed. Recent judgments have varied between the so-called Traditional Approach which requires the company-debtor to show a genuine dispute on substantial grounds and the Lasmos...