China (represented by the Supreme People’s Court) and Hong Kong have just entered into an arrangement that significantly changes (by strengthening) the existing regime for the mutual recognition and enforcement of judgments by mainland and Hong Kong courts. The headline is a little too sweeping, so please read on for the details.
In 2006, China and Hong Kong entered into an agreement (called an “arrangement” because “agreement”, “treaty”, and other terms might imply that the parties had equal status) for the mutual recognition and enforcement of certain judgments. But its reach was very limited. Due among other things to the concerns of the Hong Kong bar about the fairness of mainland court proceedings, the arrangement’s coverage was limited to money judgments of a court where the parties had already contractually agreed that the court in question would have exclusive jurisdiction over any disputes. If the parties had agreed that a mainland court had jurisdiction, Hong Kong courts would enforce their judgment, and vice versa. In other words, it functioned the same way as an agreement to enforce arbitration awards. Nobody would ever have a mainland court judgment enforced against them under this arrangement unless they had contracted for it.
The new arrangement changes this. Like the old arrangement, it covers civil and commercial judgments (“judgments” being defined broadly), with some carve-outs for a number of specific exceptions, such as patent litigation. Most importantly, however, it eliminates the condition of voluntariness. Hong Kong courts will now, if the requisite conditions are present, enforce mainland judgments even where the parties didn’t explicitly agree on mainland jurisdiction. This is a major shift in the underlying principle behind these arrangements, and is another symbolically significant mark of the erosion of “One Country, Two Systems.”
- Hong Kong Department of Justice web page with texts and background information of 2006 arrangement, 2019 arrangement, and a 2017 arrangement specifically directed at marriage and divorce issues (Chinese | English).
- Chinese text of 2019 arrangement from Supreme People’s Court website.
- Chinese source for text of 2006 arrangement (with details about when passed, when effective, etc.) This document says that the arrangement did not come into effect until Aug. 1, 2008; I had always thought it came into effect much earlier than that. If anyone can explain in the comments what the 2008 date is about, I’d appreciate it.
- Commentary by attorney Graeme Johnston on the 2006 arrangement, with helpful links to background materials.