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Litigation: Enforcement of Foreign Judgments in Hong Kong

A Q&A with Gall, a leading independent Hong Kong law firm specialising in handling highly complex disputes, many of which involve multi-jurisdictional litigation.

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++General Framework

Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction

A foreign judgment can be enforced in Hong Kong by one of two means – first, through the statutory registration scheme based on reciprocity under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) or, second, under common law.

The Reciprocal Enforcement Ordinance applies to the following 15 jurisdictions: Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, Netherlands, New Zealand, Singapore and Sri Lanka.

In the absence of applicable special regimes set out in various ordinances in Hong Kong, the common law regime applies as the legal framework in recognising and enforcing foreign judgments in Hong Kong.

Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?

The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to the Choice of Court Agreements between Parties Concerned applies to money judgments arising from commercial contracts where the parties concerned have made a prior express agreement to submit to the exclusive jurisdiction of the courts of either mainland China or Hong Kong.

Other than the above-mentioned arrangement with mainland China, Hong Kong is a party to no international convention or bilateral treaty relating to the recognition and enforcement of judgments.

Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?

The Court of First Instance is competent to hear such cases.

Is there a legal distinction between the recognition and enforcement of a judgment?

Yes. There is a difference between recognition and enforcement of judgments. The concept of recognition itself can also differ slightly depending on whether it is considered under the Reciprocal Enforcement Ordinance or under common law.

In the first case, ‘recognition’ means that a foreign judgment is given the same force and effect as if the foreign judgment were a judgment of the Hong Kong courts.

In the second case, the foreign judgment is recognised only to the extent that it is proof of a valid debt that can be sued on, and judgment given directly from the Hong Kong courts.

While the recognition of a foreign judgment means that the judgment becomes enforceable in Hong Kong, the judgment creditor needs to take additional steps for enforcement. For example, a judgment creditor holding a recognised foreign judgment could enforce that judgment by applying for a garnishee order compelling a bank to pay what it holds on behalf of the judgment debtor to the judgment creditor.

In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?

In general, the Hong Kong courts adopt a liberal approach to the recognition and enforcement of judgments.

Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?

Despite the above mechanisms, Hong Kong lacks a comprehensive and reciprocal procedure for registering and recognising foreign judgments.

In 2016 the Hague Conference on Private International Law established a special commission to prepare a draft Convention on the Recognition and Enforcement of Foreign Judgments. The main goal of the convention is to enhance access to justice and facilitate cross-border trade and investment by reducing costs and risks associated with cross-border dealings. Hong Kong is included in the discussions as part of the Chinese delegation.

The special commission held its first meeting in June 2016, when the preliminary draft convention was agreed. The convention is expected to be finalised by late 2017.

If the Hague Conference adopts the convention, the Hong Kong government may consider its application to Hong Kong. The application of the convention in Hong Kong would provide both foreign and Hong Kong judgment creditors with a more efficient way to enforce their judgments in member states.

Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?

The following specific subject matters are governed by neither the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) nor common law:

  • Family law and insolvency matters under the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap 188);
  • Particular regimes relating to judgments in connection with the carriage of nuclear materials or oils under the Nuclear Material (Liability for Carriage) Ordinance (Cap 479) and Merchant Shipping (Liability and Compensation for Oil Pollution) Ordinance (Cap 414);
  • Applications for assistance under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525); and
  • Probate and letters of administration under the Probate and Administration Ordinance (Cap 10).

How are foreign judgments subject to appeal treated?

Despite the requirement that foreign judgments be final and conclusive before they may be recognised and enforced in Hong Kong, the Hong Kong courts have consistently upheld registration of foreign judgments (eg, Woodcraft Corporation v Yang [2015] HKCFI 428), even where foreign judgments are subject to appeal. Whether a foreign judgment is final and conclusive continues to be a difficult matter to predict and will depend heavily on the facts of each case.

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

The procedure for recognition under the Reciprocal Enforcement Ordinance involves registering the foreign judgment, which can be done in the following way:

  • The judgment creditor of the foreign judgment should apply ex parte to the Court of First Instance at the Hong Kong High Court;
  • The application should be supported by an affidavit and a draft order setting out the basis upon which the requirements under the ordinance are met (see the section on substantive requirements below);
  • If the application and other documents are in order, the court will register the foreign judgment;
  • The judgment creditor must serve the notice of registration on the judgment debtor;
  • The judgment creditor may attempt to set the registration aside (the grounds are set out in the section on substantive requirements below); and
  • If the registration is not set aside within the specified time (see below), the judgment creditor may proceed with the enforcement of the registered foreign judgment.

The procedure for recognition under common law is as follows:

  • Civil proceedings are started in Hong Kong by way of writ. The writ can be generally endorsed or include a statement of claim setting out the claim of a debt arising from the foreign judgment;
  • The writ must be served on the defendant. The plaintiff can apply for default judgment if the defendant either does not state its intention to defend within 14 days, or provide a defence within 28 days; and
  • If a judgment (default or otherwise) is obtained, it can be enforced just like any other Hong Kong judgment.

Once the foreign judgment is either registered or successfully sued upon under the common law process, the resulting registered foreign judgment or Hong Kong judgment can be enforced. The procedure for enforcement will vary depending on the type of enforcement desired.

For example, enforcement via garnishee proceedings can be achieved by following the steps below:

  • Issuing an ex parte summons supported by an affidavit. The affidavit must state the identity of the garnishee (eg, a bank) in Hong Kong and in what way the garnishee is indebted to the judgment debtor;
  • At the first hearing, the court will generally issue a garnishee order to show cause specifying a further hearing date for the garnishee to attend; and
  • At the second hearing, the court may make the garnishee order absolute if the garnishee does not attend or does not dispute liability to the judgment debtor.

What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?

The requirements for recognition of a foreign judgment in Hong Kong will depend on whether any of the relevant Hong Kong ordinances apply and, if not, whether common law applies.

Recognition under the Reciprocal Enforcement Ordinance

The primary applicable ordinance in Hong Kong is the Reciprocal Enforcement Ordinance. If a foreign judgment falls within the ordinance’s statutory regime and is from a country listed in the ordinance (Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, Netherlands, New Zealand, Singapore and Sri Lanka), the ordinance is mandatory and no other process can be invoked (including any common law process).

For a foreign judgment to be recognised under the ordinance:

  • The judgment must be from a superior court – that is, one that has unlimited jurisdiction in civil and criminal matters;
  • The recognition application must be made within six years of the date of the original judgment;
  • The judgment must not have been wholly satisfied;
  • If the judgment has been satisfied in part as at the date of registration, the judgment shall be registered only in respect of the balance remaining payable at that date;
  • The judgment must be enforceable by execution in the country of the original court;
  • The judgment is final and conclusive between the parties; and
  • The judgment is for a sum of money.

Recognition under common law

Should the foreign judgment fall outside of the ordinance, the common law process can be used. A judgment creditor can apply for a local Hong Kong judgment (without a review of the merits of the foreign judgment) if the foreign judgment is:

  • Final and conclusive upon the merits of the claim in the foreign jurisdiction; and
  • A claim for a fixed sum.

Enforcement of judgment in Hong Kong

The basic pre-requisite for enforcing a judgment in Hong Kong is to have either a registered foreign judgment or a local Hong Kong judgment.

As long as the foreign judgment is final and conclusive, the Hong Kong court will not look behind the foreign judgment and investigate the underlying merits of that judgment. As such, a conflict in local law or prior judgment on the same issue is unlikely to have any effect on the recognition and enforcement of the foreign judgment in Hong Kong.

What is the limitation period for enforcement of a foreign judgment?

Under Section 4(1) of the Reciprocal Enforcement Ordinance, a judgment creditor has six years from the date of the foreign judgment to have the judgment registered in the Court of First Instance.

On what grounds can recognition and enforcement be refused?

Challenging recognition of foreign judgment under the common law

In relation to a foreign judgment sought to be recognised and sued upon through the common law process, the judgment debtor can simply defend the proceedings brought in Hong Kong by the judgment creditor. The judgment debtor can use any of the following defences:

  • The foreign court had no jurisdiction over the claim;
  • The foreign judgment is not final and/or conclusive over the merits of the claim; or
  • The claim is not for a fixed sum.

Challenging enforcement of foreign judgment

Successfully challenging the recognition of the foreign judgment will render the foreign judgment unenforceable in Hong Kong. There would thus be no need to challenge separately the enforcement of the foreign judgment.

If challenging the recognition of the foreign judgment is unsuccessful, the judgment debtor may appeal the decision and apply for a stay of execution of the foreign judgment. However, if a stay of execution is not granted, the judgment debtor generally has no standing to challenge any enforcement procedure.

For example, a garnishee application is generally made ex parte, which means that the judgment debtor is not even notified of the enforcement process. Only the garnishee (eg, the bank) is notified and has standing to dispute liability to the judgment debtor. There is no standing for any party during a garnishee application to dispute the primary liability between the judgment debtor and creditor.

To what extent does the enforcing court review the service of process in the original foreign proceedings?

The Reciprocal Enforcement Ordinance requires the judgment debtor – that is, the defendant in the original foreign proceedings – to be given notice of those proceedings in sufficient time to enable it to defend those proceedings. The Hong Kong courts may refuse to recognise the foreign judgment where it was given in default of appearance and the defendant was not given sufficient notice.

What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?

Where the enforcement of the foreign judgment is contrary to public policy in Hong Kong, it would not normally be enforced. The Hong Kong courts may take into consideration a range of public policy issues in their decision to grant recognition and enforcement of a foreign judgment.

A foreign judgment would not normally be enforced where:

  • A foreign judgment was obtained in violation of a Hong Kong anti-suit injunction (Phillip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73); and
  • The judgment of a foreign court is inconsistent with a previous decision of a competent Hong Kong court concerning proceedings between the same parties (Vervaeke v Smith[1983] 1 AC 145).

What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?

The Reciprocal Enforcement Ordinance provides that a foreign court is deemed to have had jurisdiction in the case of a judgment given in an action in personam in the following circumstances:

  • If the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings;
  • If the judgment debtor was the plaintiff or counterclaimed in the proceedings in the original court;
  • If the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court;
  • If the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or
  • If the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place.

In the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, the foreign court is deemed to have jurisdiction if the property in question was, at the time of the proceedings in the original court, situated in the country of that court.

In the case of a judgment given in an action other than one mentioned above, the foreign court is deemed to have jurisdiction if the jurisdiction of the original court is recognised by the law of the registering court.

How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?

In general, the Hong Kong courts adopt a liberal approach to the recognition and enforcement of judgments.

However, where there are concurrent proceedings (foreign or domestic), it is difficult to see how local proceedings pending between the parties on potentially different issues from the foreign judgment can have any effect on recognition of that foreign judgment in Hong Kong.

In terms of conflicting judgments involving the same parties/dispute, it is unlikely that a Hong Kong court will recognise the foreign judgment as being final and conclusive (for registration under either the Reciprocal Enforcement Ordinance or the common law process) if there are conflicting local judgments on the same issues.

++OPPOSITION

What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?

Whether there can be grounds for challenging the recognition of a foreign judgment will depend on the method in which recognition has been sought.

Challenging recognition of foreign judgment under the Reciprocal Enforcement Ordinance

For a foreign judgment recognised in Hong Kong by registration under the ordinance, a judgment debtor can apply to set the registration aside on the following grounds:

  • The requirements for registration were not met;
  • The foreign court had no jurisdiction;
  • The judgment debtor did not receive notice of the foreign proceedings;
  • The judgment was obtained by fraud;
  • The enforcement of the foreign judgment is contrary to public policy in Hong Kong; or
  • The rights under the judgment are not vested in the person by whom the application for registration was made.

Challenging recognition of foreign judgment under common law

In relation to a foreign judgment for which the judgment creditor seeks recognition through the common law process, the judgment debtor can simply defend the proceedings brought in Hong Kong by the judgment creditor. The judgment debtor can defend on any the following grounds:

  • The foreign court had no jurisdiction over the claim;
  • The foreign judgment is not final and/or conclusive over the merits of the claim; or
  • The claim is not for a fixed sum.

Challenging enforcement of foreign judgment

Successfully challenging the recognition of the foreign judgment would render the foreign judgment unenforceable in Hong Kong. There would thus be no need to challenge separately the enforcement of the foreign judgment.

If the recognition of the foreign judgment is challenged unsuccessfully, the judgment debtor may appeal the decision and apply for a stay of execution of the recognised foreign judgment. However, if a stay of execution is not granted, the judgment debtor generally has no standing to challenge any enforcement procedure.

For example, a garnishee application is generally made ex parte, which means that the judgment debtor is not even notified of the enforcement process. Only the garnishee (eg, the bank) is notified and has standing to dispute liability to the judgment debtor. There is no standing for any party during a garnishee application to dispute the primary liability between the judgment debtor and creditor.

What injunctive relief is available to defendants (eg, anti-suit injunctions)?

For a foreign judgment recognised in Hong Kong by registration under the Reciprocal Enforcement Ordinance, a judgment debtor may make an application to set the registration aside to prevent enforcement of the recognised foreign judgment.

++Recognition and enforcement procedure

What is the formal procedure for seeking recognition and enforcement of a foreign judgment?

The procedure for recognition under the Reciprocal Enforcement Ordinance involves registering the foreign judgment, which can be done in the following way:

  • The judgment creditor of the foreign judgment should apply ex parte to the Court of First Instance at the Hong Kong High Court;
  • The application should be supported by an affidavit and a draft order setting out the basis upon which the requirements under the ordinance are met (see the section on substantive requirements below);
  • If the application and other documents are in order, the court will register the foreign judgment;
  • The judgment creditor must serve the notice of registration on the judgment debtor;
  • The judgment creditor may attempt to set the registration aside (the grounds are set out in the section on substantive requirements below); and
  • If the registration is not set aside within the specified time (see below), the judgment creditor may proceed with the enforcement of the registered foreign judgment.

The procedure for recognition under common law is as follows:

  • Civil proceedings are started in Hong Kong by way of writ. The writ can be generally endorsed or include a statement of claim setting out the claim of a debt arising from the foreign judgment;
  • The writ must be served on the defendant. The plaintiff can apply for default judgment if the defendant either does not state its intention to defend within 14 days, or provide a defence within 28 days; and
  • If a judgment (default or otherwise) is obtained, it can be enforced just like any other Hong Kong judgment.

Once the foreign judgment is either registered or successfully sued upon under the common law process, the resulting registered foreign judgment or Hong Kong judgment can be enforced. The procedure for enforcement will vary depending on the type of enforcement desired.

For example, enforcement via garnishee proceedings can be achieved by following the steps below:

  • Issuing an ex parte summons supported by an affidavit. The affidavit must state the identity of the garnishee (eg, a bank) in Hong Kong and in what way the garnishee is indebted to the judgment debtor;
  • At the first hearing, the court will generally issue a garnishee order to show cause specifying a further hearing date for the garnishee to attend; and
  • At the second hearing, the court may make the garnishee order absolute if the garnishee does not attend or does not dispute liability to the judgment debtor.

What is the typical timeframe for the proceedings to grant recognition and enforcement?

In straightforward cases, the application under common law typically take six to 12 months. Under the Reciprocal Enforcement Ordinance, the proceedings, when uncontested, take two to four months to complete.

What fees apply to applications for recognition and enforcement of foreign judgments?

For an application under the ordinance, the court fee is HK$1,045 for an originating ex parte application.

For an application under common law, the court fee is HK$1,045 for sealing a writ of summons in the Court of First Instance.

Must the applicant for recognition and enforcement provide security for costs?

If matters become contested, a judgment creditor may be well advised to take out an additional application for security for costs or an order that interim payment be made in court to safeguard the judgment creditor’s interests pending contested litigation in Hong Kong.

Are decisions on recognition and enforcement subject to appeal?

If recognition of the foreign judgment is unsuccessfully challenged, the judgment debtor may appeal the decision and apply for a stay of execution of the recognised foreign judgment. However, if a stay of execution is not granted, the judgment debtor generally has no standing to challenge any enforcement procedure.

How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?

Calculation of interest

An application for registration of a foreign judgment made under the ordinance must specify the amount of the interest, if any, which under the law of the foreign court has become due under the judgment up to the time of registration.

Exchange rate

Pursuant to the ordinance, where the foreign judgment is expressed in a foreign currency, it must be converted to Hong Kong dollars as at the date of registration of that judgment.

To what extent can the courts enforce a foreign judgment against third parties?

Garnishee proceedings are a simple method of enforcement where the judgment debtor is itself the creditor of a third party. The most common example is garnisheeing a judgment debtor’s bank account. Through garnishee proceedings, the obligation of the third party to pay money to the judgment debtor is transformed into an obligation of the third party to pay the money directly to the judgment creditor.

Can the courts grant partial recognition and enforcement of foreign judgments?

Where a foreign judgment contains both matters that can be registered and matters that cannot be registered, the Hong Kong court may register the judgment in respect of only the parts that can be registered.

ABOUT THE AUTHORS

Nick Gall, senior partner, head of litigation, GallNick Gall, senior partner, head of litigation, Gall

Nick Gall is Senior Partner and Head of Litigation at Gall. He has acted for publicly listed companies, senior employees, the Hong Kong Government, the US Government, major international banks and corporations throughout the world.

Nick has extensive experience in dealing with multi-jurisdictional fraud and international asset tracing litigation. His work often requires making cross-border applications, freezing/gagging applications, urgent injunctive relief, the examination of senior executives/bank officers and recovery and enforcement proceedings generally. He also has extensive experience in forcing banks and financial institutions to provide information to assist in tracing and recovery of funds and fending off vulture funds in respect of international sovereign debt recoveries.

Email:

Lydia Mak, associateLydia Mak, associate

Lydia Mak is an Associate at Gall. She was admitted as a Solicitor in Hong Kong in February 2015.

Lydia has experience in a variety of commercial and civil litigation matters, including contractual disputes, insolvency and fraud/asset tracing, which often involve a cross-border element. She acts for private, commercial and institutional clients through all stages of litigation, from pre-action up to trial.

Prior to joining Gall, Lydia trained and qualified as an associate in the commercial disputes team at an international law firm where she acted for solicitors, auditors and insurers in defence of high-value professional negligence claims and disciplinary proceedings brought by professional institutions.

Email:

HONG KONG OFFICE

Gall

3/F, Dina House, Ruttonjee Centre,

11 Duddell Street, Central, Hong Kong

Tel: +852 3405 7688

www.gallhk.com

This article first appeared on Lexology and is available at https://www.lexology.com/navigator

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