Cross-Border Legal Services

BARRISTERS IN HONG KONG ARE LEGAL EXPERTS

The practice area of Hong Kong barristers - According to Legal Practitioners Ordinance (Cap. 159), the legal profession in Hong Kong comprises barristers and solicitors.[1] Not only do barristers represent and litigate on behalf of clients in courts, they are also legal experts who resolve legal disputes and delve deep into jurisprudential research. Apart from litigation, barristers also frequently partake in arbitration and mediation in different capacities, including legal representatives for clients, arbitrators and mediators etc. Moreover, barristers also provide clients with important legal opinion on issues including legal procedures, matters of substance and litigation strategies etc.

Barristers in Hong Kong are independent legal practitioners - As of January 2017, there are around 1,380 barristers in Hong Kong, including about 100 Senior Counsel, of which 80% are ethnic Chinese.  In Hong Kong, each and every barrister is self-employed in order to ensure independence and impartiality while practicing. As such, the issue of conflict of interest does not usually arise while instructing barristers. Moreover, the self-employed nature of barristers also allows for flexibility in terms of the charging of fees.

The strengths of Hong Kong barristers - If mainland businesses or individuals encounter any legal issues pertaining to Hong Kong law, barristers may directly advise them on such issues and provide legal opinion. Barristers can provide Mainland businesses with a series of legal services, especially in commercial disputes and international arbitration. Barristers are trained in common law and are thus well-versed in the Hong Kong legal system as well as other common law jurisdictions around the world. Barristers in Hong Kong and lawyers in China together can form a team that is familiar with the laws of both areas, and as such, it can be said that Hong Kong barristers and mainland lawyers are aptly complementary to each other.

Owing to its geographical advantage of being in the centre of Asia, Hong Kong is a popular venue for dispute resolution. Many barristers in Hong Kong are highly experienced in international arbitration and civil litigation, and litigation techniques often involved in trials of the International Arbitration Centre such as the drafting of legal submissions, the cross-examination of witnesses and conducting legal research are commonplace in the day-to-day practice of barristers in Hong Kong. Moreover, barristers in Hong Kong are bilingual in both English and Chinese, being equally comfortable working in either language. Not only does this facilitate interactions between barristers and mainland clients, this also reduces the time and costs required for the mass translation of documents. Being bilingually trained, barristers in Hong Kong possess a linguistic advantage in international arbitration, greatly benefitting their clients.

How to instruct a barrister - According to the Hong Kong Bar Association’s Overseas Practice Rules Annex 14 Paragraph 2,[2] a practising barrister may accept instructions from any person qualified as practising as a foreign lawyer or from mainland clients for professional work for the purpose of, or in connection with any international arbitration proceedings in Hong Kong, as long as the proceedings does not involve pre-existing, ongoing litigation and local arbitration in Hong Kong.

HOW DO BARRISTERS IN HONG KONG COMPLY WITH THE NEEDS OF CHINESE BUSINESSES?

To follow China’s “Belt and Road” Initiative – Integration with the global community and to be in line with the current “Go Out” strategy is the dominant trend among Mainland businesses, but while conducting business in foreign areas bring many opportunities, it  also inevitably gives rise to legal disputes. Foreign parties’ comparatively deeper familiarity in the workings of international trade and foreign legal systems will often allow them to gain the upper hand in legal disputes. There are several drawbacks for Mainland businesses in the sphere of foreign trade,  including complicated trade structures and commercial rules, as well as the unfamiliar legal systems of foreign countries. If Mainland businesses wish to resolve disputes in China through litigation or arbitration, foreign parties will predictably be hesitant in doing so. As such, the ideal solution would to be seek a neutral and reliable location to conduct international arbitration, so as to allow both sides to resolve their disputes under a fair and effective environment.

Located in the centre of Asia, the courts of Hong Kong inherit the British common law tradition, possessing a sturdy reputation for their strict maintenance of the rule of law and judiciary independence. It is thus an ideal location for conducting arbitration. Arbitration Ordinance (Cap. 609), building upon the basis of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, unifies the rules of both Hong Kong arbitration and international arbitration systems and  Not unfamiliar to foreign investors,  these rules are acceptable to both Chinese and foreign parties. Moreover, Hong Kong has a sterling reputation for its arbitration system: The Hong Kong International Arbitration Centre processed 463 cases in 2013, in which cases involving mainland claimants were of the highest ratio. Lastly, Hong Kong possesses cultural, historical, geographical advantages, and benefits from the ease of communication and wide-reaching international networks. Hong Kong citizens receive Western education, are flexible and effective, and have a thorough understanding towards the historically rich and expansive China and also foreign countries. Hong Kong is thus an arbitration spot ideal for both mainland and foreign parties.

Following the internationalization of disputes, the method for resolving disputes must also evolve to keep in pace. Modern international arbitration often requires lawyers from different jurisdictions to work closely with each other. Barristers in Hong Kong can provide legal services for mainland businesses in the following areas:

Arbitration in Hong Kong

If mainland businesses choose Hong Kong law to be the applicable law in question, they may directly instruct barristers in Hong Kong to handle the entire arbitration process. In cases involving international arbitration, mainland businesses and law firms may also directly instruct barristers in Hong Kong. Apart from attending trials, barristers in Hong Kong may also provide legal opinion on Hong Kong law or international legal issues. Mainland businesses and law firms may instruct barristers in Hong Kong to provide legal advice prior to commencing legal proceedings. The professional opinions of barristers assist the client in analysing whether he/she has sufficient legal basis and evidence, allowing the client to determine more accurately the strengths and weaknesses of his/her case and to make the best preparation possible for the arbitration proceedings.

If mainland businesses choose foreign law to be the applicable law in question, barristers in Hong Kong may still provide legal opinion and assistance with reference to legal proceedings under Hong Kong law. Arbitration Ordinance (Cap. 609) permits the Hong Kong courts, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, to grant interim measures.[3] The most common of such measures include Mareva injunctions, orders to halt infringement behavior (such as intellectual property infringement) and orders for disclosure of documents etc.  Such procedures require applications to be made to Hong Kong courts, and so mainland clients would require the assistance of barristers in Hong Kong. In addition, barristers in Hong Kong can also provide legal advice on the Hong Kong legal procedures involved in arbitration, such as whether the facts of the case in question fit the requirements of the injunction applied for, the parameters of the injunction and its actual textual content, the odds of success and whether the application is worth trying. Such professional legal advice is helpful towards mainland businesses and clients in determining what measures to take to protect their own interests, and how the arbitration process can be fairly and effectively facilitated.

Arbitration in foreign countries

In general, mainland clients can instruct barristers in Hong Kong to act as legal representatives in foreign arbitration courts if the applicable law in question is Hong Kong law, provided that the foreign arbitration law and rules of the arbitral tribunal permits so. According to Cap. 609, an award made outside of Hong Kong in arbitral proceedings by an arbitral tribunal is enforceable in Hong Kong.[4] An application must be made towards Hong Kong courts for such an execution, and thus barristers in Hong Kong can provide relevant assistance for their clients.

How foreign arbitration awards are enforced in Hong Kong

Hong Kong is a signatory of the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards), and accordingly a mainland award is enforceable in Hong Kong.[5] In other words, regardless of where the award is handed down, the possibility of enforcement in Hong Kong is high. Moreover, whenever facing the awards handed down by foreign and mainland arbitration tribunals, Hong Kong courts adopt a policy of minimal intervention and only carry out a nominal examination of the awards.[6] As long as the arbitral awards in question do not contravene proper legal procedure, and that no sufficiently serious error is present, Hong Kong courts may still exercise discretion in enforcing awards awarded by foreign arbitral tribunals.[7] As such, it can be seen that Hong Kong courts are very supportive of arbitration in terms of enforcing arbitral awards.

The enforcement of foreign and Chinese arbitral awards in Hong Kong requires assistance from barristers. If the losing party attempts to contest foreign arbitral decisions in Hong Kong courts, they must have a trial in Hong Kong courts. At this point, the participation of barristers is imperative.

Litigation involving foreign parties in Chinese courts

With the increased commercial activity involving foreign parties, disputes revolving such commercial activity dealt with by the Chinese courts often draw in legal issues relating to Hong Kong law. While barristers in Hong Kong cannot act as legal representatives for their clients in mainland Chinese courts, they can still nonetheless provide expert opinion on legal issues relating to Hong Kong law involved.

According to Article 10 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China, a party in arbitral proceedings is obliged to put forward foreign law should he choose to apply foreign law[1] .[8] The most common method of doing so is to provide the opinions of foreign legal professionals. If the matter concerns Hong Kong law or international law, Hong Kong barristers may provide their opinions to the Chinese courts through Chinese lawyers. Apart from the provision of written opinions, Hong Kong barristers may partake in the trials of the Chinese courts and arbitration courts to present the relevant legal viewpoints.[9]

HOW CAN HONG KONG BARRISTERS COLLABORATE WITH CHINESE LAWYERS?

In current international arbitration cases, the plaintiff can simultaneously instruct both mainland and Hong Kong lawyers to work together on the same case. Mainland lawyers will deal with issues relating to Chinese law and Chinese judicial procedures, while foreign lawyers will deal with issues relating to foreign jurisdictions and provide strategic advice on such. Should the applicable law in question is Hong Kong law, Chinese clients can simultaneously instruct both mainland Chinese lawyers and barristers in Hong Kong, which will surely be beneficial towards the overall progression of the trial.

Chinese lawyers are familiar with Chinese law, have a clear grasp of the rules of the mainland market and the flow of liquidity, understand the needs of public and private bodies as well as individual clients, and possess networks and appreciate the logistical information within the local area. If the legal services market of China is to be expanded, the above requirements are imperative. Having undergone strict training in the common law, barristers in Hong Kong have worked extensively on international trade contracts and legal disputes, and are thus very experienced in such an area. Should both parties collaborate, this will be nothing less than a perfectly complementary and a win-win situation, supplying the Chinese businesses with better and more comprehensive legal services.

Cooperation among barristers in Hong Kong, and mainland businesses and the Chinese legal profession, can be manifested in the following areas:

1). Legal advice and assistance can be sought directly from barristers in Hong Kong when mainland businesses and lawyers encounter problems involving Hong Kong law, international commercial law and disputes involving foreign parties.

2). Mainland Chinese law firms and Hong Kong barrister chambers may second lawyers to each other for the purpose of visit and research, and to have a further understanding towards how their counterparts deal with daily legal business, how the administration of the firm/chambers is managed, and towards the litigation proceedings in Hong Kong and professional ethics.

A Hong Kong barrister may also be retained by a Mainland law firm as its Hong Kong law consultant, to advise on Hong Kong law and procedure-related matters.   In 2004, the PRC Ministry of Justice issued the“Administrative Measures for Hong Kong and Macau Practitioners Employed by Mainland Law Firms as a Legal Consultant” in accordance with the Closer Economic Partnership Arrangement (CEPA).  Hong Kong barristers employed as consultants will serve as the firm's first point of contact on questions of Hong Kong law, in both contentious and non-contentious cases.   Consultants are not paid a fixed sum for their appointment, but will be remunerated on a case-by-case basis, according to the actual amount and nature of work required. 

In the Lujiazui Legal Forum held in November 2015, and with the support and in the witness of the Ministry of Justice and the Hong Kong Department of Justice, a memorandum of understanding in effecting such consulting arrangements was reached between the Shanghai Bar Association and the Hong Kong Bar Association.  In the meantime, seven members of the Hong Kong Bar (including Senior Counsel) became the first to be appointed as legal consultants to seven respective law firms in Shanghai.  It is planned, and envisaged, that this will pave the way for a greater number of Hong Kong law consultants to be appointed across the Mainland. 

If the legal profession of Hong Kong, and of China, can collaborate and work together with sincerity, this will no doubt continually be a tremendous contribution towards the rule of law of Greater China.

 

Hong Kong Bar Association
LG-2, High Court, 28 Queensway, Admiralty, Hong Kong
Website: www.hkba.org
Email: mac@hkba.org
Telephone: (852) 2869 0210
Fax: (852) 2869 0189

 

 

 

[1] Legal Practitioners Ordinance (Cap 159) ss2 and 3.

[2] The Hong Kong Bar Association’s Overseas Practice Rules, Annex 14 Paragraph 2.

[3] Arbitration Ordinance (Cap. 609) s45(2).

[4] Ibid, s84.

[5] Ibid s92, and Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region, < http://www.doj.gov.hk/eng/topical/pdf/mainlandmutual2e.pdf>.  

[6] Re Petro China International (Hong Kong) Corp Ltd [2011] 4 HKLRD 604.

[7] Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in lig) (No. 1) [2012] 4 HKLRD 1.

[8] Article 10 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China: Foreign law applicable to the foreign-related civil relations shall be identified by the people’s court, arbitration institution or executive authorities.

[9] Article 79 of Civil Procedure Law of the People’s Republic of China: the client may apply to the people’s court for the appearance of professionals in trials to give their expert opinions.