When formulating a cross-border litigation strategy for clients, clients often ask if and how a foreign judgment may be enforced in Hong Kong. In gist, our answer will be a foreign judgment can be enforced in Hong Kong by two methods: (1) through the statutory registration scheme based on reciprocity under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) or (2) under common law.
The Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) applies only to the following 15 jurisdictions: Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, Netherlands, New Zealand, Singapore and Sri Lanka.
In respect of other jurisdictions, in the absence of a reciprocal enforcement regime codified in Hong Kong’s legislation, the common law applies as the legal framework for recognizing and enforcing those foreign judgments in Hong Kong.
In JSC BTA Bank v Muktar Kabulovich Ablyazov, HCMP341/2004 (unreported, 17 February 2014), the Court of First Instance held that at common law, a foreign judgment will be conclusive in Hong Kong proceedings if it is:
- Final and conclusive on the merits;
- Made by a court of competent jurisdiction over the parties and the subject matter;
- Between the same parties or their privies on an identical issue;
- For a monetary sum where the plaintiff seeks to enforce as well as recognize the foreign judgment; and
- Not impeachable according to the rules on conflict of laws of Hong Kong.
Nonetheless, there are exceptions to the above. The following specific subject matters are governed by neither the Foreign Judgments (Reciprocal Enforcement) Ordinance nor by the 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)
If you have questions in relation to enforcement of a foreign judgment in Hong Kong courts, contact us today for a discussion.