The Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (“Cap. 645”) came into force on 29 January 2024, embodying and giving effect to 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” signed by the Hong Kong Government in January 2019.
The law
Cap. 645 supersedes certain old arrangements under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) (“Cap. 597”), allowing wider spectrum of cross-border disputes be dealt with more efficiently and cost-effectively.
Removing choice of court arrangement. The most prominent change is the removal of the requirement of exclusive “choice of court agreement”. Previously, a Mainland judgment may only be registered under Cap. 597 and be enforceable in Hong Kong if, amongst other things, the underlying written contract contained an exclusive jurisdiction clause submitting the parties to the applicable courts in Mainland China or Hong Kong. With Cap. 645 in effect, party seeking a reciprocal enforcement only needs to demonstrate actual connection with the Mainland or Hong Kong when the proceedings were initiated. That is to say, the defendant’s place of residence being in the Mainland or Hong Kong (as the case may be) may suffice.
Widening scope of subject matters and remedies. Another significant change is the expanded categories of judgments and remedies being accepted by Cap. 645. The old regime (Cap. 597) only covers judgments on civil and commercial contracts providing for monetary relief. Now, subject to the exclusion list, Cap. 645 caters for most judgments on civil or commercial matters, certain intellectual property cases and even criminal judgments involving monetary compensation and damages. Unlike the old arrangements, Cap. 645 covers both monetary and non-monetary reliefs.
The procedure
Alongside Cap. 645, a subsidiary legislation (Cap. 645A) and a new Practice Direction 38 came into force the same day, governing the application procedures for reciprocal recognition, registration and enforcement of applicable judgments. These include procedures for the application for certified copy of a Hong Kong judgment and a Registrar’s Certificate for the recognition and enforcement of the Hong Kong judgment in the Mainland.
In so far as the registration of a Mainland judgment in Hong Kong is concerned, the application must be made ex parte to the Court of First Instance by Originating Summons (Form 11) with supporting affidavit and draft order. Applicants taking out the application have a continuing duty of making full and frank disclosure. They must keep the Court informed of any and all latest development of the case by filing supplemental affidavits. After the Court grants a registration order, the applicants must, in prescribed manners, serve a notice of registration on all parties against whom the Mainland judgment may be enforced.
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