Although insider trading has been a crime in Hong Kong since 2003, the Securities and Futures Commission (SFC) was initially slow to prosecute offenders, commencing its first criminal insider dealing prosecution only in January 2008. However, as recent headlines...

Schemes of arrangement reign supreme as the preferred legal mechanism for friendly takeovers of Cayman Islands companies listed in Hong Kong and in various other jurisdictions around the world. There are several reasons for this, not least of which are that...

Professionals like investment bankers, auditors and lawyers should pay close attention to potential behavioural deviations in order to avoid pitfalls when making securities disclosures, such as in a prospectus for an initial public offering or a shareholders’...

While the Hang Seng Index has performed well over the past few months, Hong Kong law firms have not been immune to the effects of the global economic environment and its impact upon their clients. As money gets tighter for law firms, internal scrutiny increases....

Over the past 15 years, Hong Kong has experienced the rise and fall of the property market, countless demonstrations ranging from protection of heritage sites to the recent protests against the express rail link, the Asian financial crisis, the SARS outbreak...

On 28 November 2009, the Law Society of Hong Kong held the first Cross Strait Four Regions Lawyers Summit in Hong Kong, which aimed at and focused on discussing the role that the ‘Cross Strait Four Regions’ (including Hong Kong, the Mainland,...

The past year was an important one for antitrust lawyers in China, as it was the first full calendar year with the Anti-Monopoly Law (AML) in effect (since August 2008). The year 2009 started as it ended, with the Ministry of Commerce (MOFCOM) setting the...

In the article entitled ‘Final Appeal Criteria for Civil Appeals involving Damages Claims’ published in the July 2009 issue of Hong Kong Lawyer, I argued that the Court of Final Appeal’s (CFA) decision in China Field Ltd v Appeal Tribunal...

The legal system in Hong Kong has been evolving for over 160 years while in the Mainland, it was restored just over 30 years ago. Throughout its long historical development, the legal community in Hong Kong has gained prominent features. To understand how...

In November 2009, the Class Actions Sub-committee of the Law Reform Commission (the ‘sub-committee’) published a consultation paper seeking the public’s views on proposals to introduce a comprehensive regime for multi-party litigation. ...

Under the Air Pollution Control Ordinance (Cap 311), the Air Quality Objectives (AQOs) set out the targeted maximum levels of the numerous pollutants that affect air quality in Hong Kong. These pollutants are emitted from different sources and are thus regulated...

On 15 September 2008, Lehman Brothers Holdings Inc (LBHI) filed for Chapter 11 bankruptcy protection in New York which triggered the bankruptcy of the Lehman Brothers group of companies. It was the world’s largest ever bankruptcy. This had a number...

The 2009 Cross Strait Four Regions Lawyers Summit provides a great opportunity for prominent legal professionals from the Mainland China, Hong Kong, Macau and Taiwan to discuss trends and developments in the legal services industry in order to help build...

Public interest litigation (PIL) is an important tool for bringing about socio-economic change in many developed and developing countries. This type of legal action is brought by an applicant with no private interest in the subject matter of the case. He...

This article in two parts will attempt to describe, and constructively comment on, the current Hong Kong laws in respect of asset recovery and the closely associated offences of money laundering and the reporting thereof, with particular reference to legal...

The legal industry has often been accused of being slow to evolve. Be it billing processes, the adoption of time-saving technology or the perceived lack of flexible working practices, there is a view that the industry lags behind. However, the global financial...

Despite Hong Kong’s active entertainment industry, there is a scarcity of local case law relating to disputes between artists and their management as such cases are frequently settled before trial. The recent judgment by the Court of First Instance...

It is not uncommon to receive instructions from grandmother clients in respect of custody applications for their grandsons. However, there are few written judgments and no reported cases to provide clear authority as to such an applicant’s rights as...

In July this year, the Law Reform Commission (LRC) published a consultation paper seeking the public’s views on proposals to extend the existing restricted scope of an enduring power of attorney, which at present can only apply to decisions about the...

In recent weeks we have begun to see the first signs of improvements in the global economy. Much to everyone’s relief, the financial markets are reporting positive activity, major economies have moved out of recession, job losses have started to slow...

The State Council issued the ‘Outline of the Plan for the Reform and Development of the Pearl River Delta Region (2008-2020)’ (the Outline) this January, expanding the scope of affairs in which the Guangdong and Hong Kong governments can negotiate...

I moved to Hong Kong from Toronto, Canada in 1995 as a newly minted barrister and solicitor. I had studied refugee law and international human rights law at Osgoode Hall Law School and, given my wish to practice human rights law, I was fortuitous to have...

Hong Kong’s Civil Justice Reform, which took effect on 2 April 2009, was designed with the benefit of hindsight as to the successes and failures of the 1999 Woolf Reforms in England. One such success was Part 36 of the English Civil Procedure Rules,...

The Companies (Amendment) Law 2009 came into force in the Cayman Islands on 11 May 2009. The new law introduces Part XVA to the Companies Law (2007 Revision) to provide an additional means of effecting mergers and consolidations of Cayman Islands companies...

There has been considerable discussion in the general and legal media regarding the state of law firm business models and the need for innovation in the legal industry. Numerous consultants within the profession – including me – profess the need...

This July, the Law Society of Hong Kong held a series of seminars on foreign-related legal services for enterprises, in collaboration with the provincial lawyers associations of Jiangsu and Zhejiang and with China Council for the Promotion of International...

Mediation has been very much in the spotlight over the past year or so with the advent of Hong Kong’s Civil Justice Reform on 2 April 2009. Indeed, mediation as a concept is incorporated in the underlying objectives of Order 1A.4(2)(e) of the new Rules...

Recently, a lawyer visiting from Shanghai, after attending a few hearings in our courts, told me that she was very impressed by the attitude of the judges and practitioners here. In particular, she observed that they all seemed to deal with their cases very...

Many debtors and mortgagors have found themselves in default as a result of the economic downturn. Those forced into a corner are likely to explore all avenues to delay repayment or the surrender of mortgaged properties. These can include disputing a creditor's...

A range of recent developments have had far-reaching effects on the promotion of closer cooperation between legal communities in Guangdong and Hong Kong to provide cross-border legal services in such areas as investment, financing, M&A and listing. They...

There is, it seems, a growing dissatisfaction in the international legal services market, particularly from large corporate users of legal services. Some simply want cheaper service in recessionary times; others want more certainty about their budgetary commitment....

Robert Sawhney sets the scene in chapter one of Marketing Professional Services in Asia by citing that in Hong Kong alone there are over 10,000 professional services businesses employing over 80,000 professionals. The professional services sector - including...

In June 2008, a district court in Guangzhou ruled that Qiqihar No 2 Pharmaceutical Company Ltd, as well as two other companies and a hospital in Guangzhou, were to share responsibility for 14 deaths that resulted from counterfeit drugs. The civil award, a...

In February 2009, the Court of Final Appeal finally put to rest the issue of whether claims against a dishonest assister are subject to a limitation period in its decision in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] HKCU 284 (FACV 17 &...

In its recent decision in China Field Ltd v Appeal Tribunal (Buildings) (No 1) [2009] 2 HKLRD 135; [2009] 2 HKC 182, the Court of Final Appeal has interpreted the 'as of right' ground of appeal contained in s 22(1)(a) of the Court of Final Appeal Ordinance...

These are tumultuous times for the aviation industry. Never before has the industry been confronted with such a confluence of events, lead amongst which is the seizure of the money markets resulting in a scarcity of liquidity, which has crippled the ability...

Hong Kong is unusual in that the Basic Law protects legal professional privilege (LPP) 'up front' by specifically identifying it as a constitutional right. Other jurisdictions have to be content with common law protection, or in gleaning the right to confidential...

This article, based on a talk given at the Commonwealth Law Conference in April, revisits the English Court of Appeal's decision in Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556 ( Three Rivers (No 5) or...

As a consequence of the economic downturn corporate practitioners are witnessing an increase in takeovers and mergers. Three recent cases highlight a range of issues that may arise in share acquisition transactions, the most common form of corporate takeover...

The current recession has focused attention once again upon the difficulties which arise in cross-border insolvency cases, and upon the extent to which the existing powers of the courts of any given country are sufficient to enable them to assist in the restructuring...

Sir Laurence Street, AC, KCMG, QC, HFAIB, KStJ, has had a long and distinguished career in and outside the law. He was called to the New South Wales Bar in 1951 and later took silk, before becoming an Equity Judge of the Supreme Court in 1965. In 1974 he...

Since the main text of CEPA was signed on 29 June 2003, there has been a series of supplements, including the recently announced Supplement 6 (CEPA 6), that incorporate further liberalisation measures on trade in goods and services between the Mainland and...

Ten years ago, bilingual lawyers were highly sought after. Today, in certain areas, having only two languages is simply not enough. The change is very clear: lawyers are often now expected to be linguists. While clients may demand that their lawyers can...

Mediation is not a concept that the profession can now afford to ignore. Judicial and official support for it is, thankfully, too strong for it to wither on the vine as a passing fad. Experience shows that mediation does work in practice and it can bring...

We live in a world where speed and efficiency are paramount in all business dealings. Telephone and video conferences have long taken the place of physical meetings. Signing and closing of transactions by email or fax are becoming the norm rather than the...

The economic downturn has resulted in an increasing number of people losing their jobs. Economists have predicted that many more will join the ranks of the unemployed during 2009. This article considers the implications and risks, both to employees and employers,...

On 20 January 2009, the bilateral treaty for the avoidance of double taxation between the Hong Kong SAR and the Grand-Duchy of Luxembourg (the Treaty) entered into force in both jurisdictions. The Treaty has retroactive effect, and is applicable as from 1...

The story of the Welsh devolution settlement makes an interesting comparison to the handover of Hong Kong from Britain to China. What is the devolution settlement and how was it negotiated and implemented? There was talk of devolution for many years in...

Although Hong Kong's Civil Justice Reform has drawn heavily upon the Woolf Reform in England, it has eventually taken a rather different direction. Instead of adopting an entirely new procedural code as in the English Civil Procedure Rules (CPR), we have...

Since the adoption of the open door policy in the late 1970s, Mainland China has undergone various fundamental changes. These have brought about reforms in different sectors including the legal sector. With increasing emphasis on governance by the rule of...

Civil Justice Reform has been brought into effect by a series of amendments to the existing rules. These amendments may generally be classified as major amendments , which primarily bring the reforms into effect, and minor amendments , which arise as necessary,...

Civil Justice Reform has been a long time in coming. Propositions for reform were first made in 2001 and the research into what is best for Hong Kong, public consultations and ensuing legislation have now all been completed. The Law Society has, like the...

The rules of procedure exist to enable civil litigation to be conducted in a way that is fair and effective and allows parties to resolve their disputes in a satisfactory manner. The objective of Civil Justice Reform is to improve the way in which we conduct...

In February 2000, a Working Party was appointed by the Chief Justice of Hong Kong with the following mandate: "To review the civil rules and procedures of the High Court and to recommend changes thereto with a view to ensuring and improving access...

Discovery and inspection of documents is covered under Order 24 of the Rules of the High Court. Consequential amendments have been made under the Rules of the High Court (Amendment) Rules 2008 as a result of Civil Justice Reform, including to the following:...

Order 35 rule 3A of the Rules of the High Court (RHC) imposes restrictions on the conduct of a civil trial in a number of ways, as follows: "1) At any time before or during a trial, the Court may by direction - (a) limit the time to be taken in...

Civil Justice Reform brings with it two new Orders containing innovative new procedures designed to encourage and facilitate pre-trial settlement. First, there is the entirely new Order 13A which enables a defendant to admit liability in whole or in part...

A decade ago the English civil procedural rules were re-written with a fundamental aim in mind, being the reduction of the costs of litigation. This was to be achieved not only by specific changes in the costs rules, but also by way of significant changes...

In 2004, the Land Titles Ordinance (LTO) was enacted to begin the transformation of land dealings in Hong Kong from the existing deeds system under the Land Registration Ordinance (LRO) to a new registration of title system. At that time, there was a clear...

Some solicitors may feel more comfortable with litigation than mediation. However, with the importance of mediation on the rise, solicitors need to know the new landscape. An informed and strategic approach will see solicitors better placed to assist and...

In some jurisdictions, such as England and Wales, the duty of care owed by an executor or trustee is defined by statute. Hong Kong however relies on the common law for this purpose. Learoyd v Whiteley (1887) 12 App Cas 727 and subsequent case law shows executors...

The 2008 financial tsunami has shattered not only a seemingly unassailable investment bank, Lehman Brother Holdings Inc (Lehman), but also the financial dreams of over forty thousand local lay investors who invested part or all of their life savings in Lehman's...

With the outlook for the world economy continuing to look bleak, many organisations are predictably taking a hard look at their IT expenditures to identify projects that can be cut or deferred. The reality, however, is that business needs for available data...

The global financial system experienced its first systemic crisis since the 1930s in autumn 2008, with the failure of major financial institutions and the seizure of global credit markets. Although Hong Kong was not at the epicentre of this crisis, it has...

The current state of the law on the guardianship and custody of children means that the courts and family lawyers in Hong Kong continue to labour under a British statutory regime from the 1970s. Whilst other common law jurisdictions have moved away from a...

Litigation often calls for an expert opinion on the business value. Valuing a business or business interests requires an understanding of why investors have put their money into it. Investors generally invest for the future cash flows from the underlying...

What do ostriches and law firms have in common? With his head buried in the sand, the ostrich is oblivious to approaching danger. With no client feedback mechanism, an unprepared law firm is often oblivious to the significant dangers of client dissatisfaction....

On 7 December 2008, the Hong Kong Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong sent delegates to attend the public event 'Shenzhen Legal Panorama' held at the Kite Square of Shenzhen's Lotus Hill Park. The Law Society...

It is hardly controversial to say that the world is becoming increasingly globalised. The ever-improving human capacity to move ideas and objects around the world continues to raise the levels of cultural cross-fertilisation and commercial cooperation. There...

The global economic crisis has led to the collapse of numerous financial institutions and corporations worldwide. The width and depth of the crisis is yet to be fully ascertained. Swift and effective measures are called for. Governments, whether in developed...

Over the last ten years the landscape of the legal profession in Hong Kong has shifted dramatically, not only in terms of the growth in the population of local lawyers and law firms but also in terms of the number of foreign lawyers and foreign law firms...

In a nutshell, what is the School of Transnational Law? The STL introduces the first Juris Doctor programme with American law content taught by US professors in China. It is a highly innovative and very challenging enterprise. How was the programme...

Mr Justice Anthony M Kennedy Associate Justice of the Supreme Court of the United States of America. Mr Justice Kennedy was appointed to the Supreme Court in 1988 and has a long list of distinguished achievements as a judge, a lecturer and a private...

The words 'human rights' have a different meaning for every person or group. Many persons may not be able to list one human right. To some, even though human rights may be generally considered to be something good, they are not that important on a practical...

The fallout from the failure of Lehman Brothers Holdings Inc (Lehman) has been most visible in Hong Kong in the claims made by thousands of 'small'and 'non-professional' investors who had invested in the firm's so-called minibonds. The saga has now taken...

Solicitors who act for clients in property and commercial transactions where a client's money is paid by one firm to another for the purpose of the transaction will ignore at their peril the judgment of the Court of Final Appeal in Hebei Enterprises Ltd &...

What disability do you suffer from? Ankylosing spondylitis, or AS. It is a chronic, progressive and painful inflammatory rheumatic disease which affects the spinal joints, in particular those at the base of the spine. I was able to walk properly until...

Assessments by the international Financial Action Task Force (FATF) have found that Hong Kong has a good legal structure for combating money laundering and terrorist financing. Local enforcement is led by the Joint Financial Intelligence Unit (JFIU), while...

The establishment of robust anti-money laundering (AML) and counter financing of terrorism (CFT) procedures is a non-negotiable issue for law firms. This article examines how efficient use of information technology can reduce disruption and delays to the...

Non-exclusive jurisdiction clauses are common provisions in contracts. They typically provide for the parties' agreement to submit any dispute arising from the contract to the courts of a particular jurisdiction while leaving the parties free to commence...

On 6 June 2008, the Hong Kong Government announced the 'Arrangements for the Implementation of Clean Development Mechanism (CDM) Projects in the Hong Kong Special Administrative Region' (the Implementation Arrangements). The Implementation Arrangements have...

After years of sidestepping the issue, the Hong Kong Government released its proposal for a cross-sector competition law in May, marking the beginning of a three month public consultation period. Draft legislation will be tabled in LegCo during the 2008/9...

First of all, congratulations on your recent admission to the Law Society's Roll of Honour, joining the ten previous members of that roll. How do you feel about being in such illustrious company? I was taken by surprise, albeit pleasantly surprised. When...

On 28 February 2008, the State Council Information Office published a white paper entitled 'China's Efforts and Achievements in Promoting the Rule of Law' (the White Paper). It is the first white paper on this subject issued by the Chinese Government. ...

The Standing Committee on Standards and Development is tasked with looking after the training and education of the profession, and I am very pleased to be able to bring you news of several initiatives and changes which will be coming to fruition during the...

The civil justice reforms (CJR) due to come into effect in April next year represent the most important change in the practice of civil litigation since the current rules were introduced; that is to say, in the working lifetime of almost every practitioner....

On 29 July 2008, the Law Reform Commission's (LRC) Review of Sexual Offences Sub-Committee published a consultation paper containing interim proposals on a sexual offender register. The LRC had been asked in April 2006 to review the common and statute law...

What are the conditions that have led to the decision to undertake civil justice reform (CJR) in the UK and Hong Kong? Primarily cost. The cost of litigation is high, often disproportionate to the subject matter in dispute, and on the whole - and this...

The law of the Peoples' Republic of China (PRC) confers a right of first refusal (ROFR) on tenants. A landlord who intends to sell a rental property, upon reaching agreement with a potential buyer on the major sale terms, must first offer the property to...

After years of contemplation, China's first formal Anti-Monopoly Law since its entry into the WTO came into effect on 1 August 2008. China has been swift in making anti-monopoly rules since its WTO entry, and their focus has shifted from foreign-funded M&As...

In the time before British colonisation, the population of Hong Kong was essentially homogenous and race discrimination was barely existent. During British colonial rule, many expatriates came to work in Hong Kong and the paradigm shifted. British citizens...

In what has been labelled by media commentators as a 'victory' by the legislature over the Government, on 10 July 2008 the Legislative Council approved the enactment of the Race Discrimination Ordinance (RDO). For the first time, discrimination, harassment,...

In May 2008, Hong Kong Exchanges and Clearing Ltd published its Growth Enterprise Market (GEM) Consultation Conclusions along with with new amendments to the GEM Listing Rules. The latter came into effect on 1 July 2008. When the GEM Board was first...

With a population of 85 million people and economic growth rates above 8%, Vietnam presents exciting opportunities for investors. Vietnam has been one of the best-performing developing economies in the world and as a result, has drawn strong interest from...

Why Fiji? Why not? The place is beautiful, the people are wonderful. The idea that I could visit an island paradise and get paid for it was irresistible. Why the Court of Appeal? The Court of Appeal of Fiji sits three times a year for about three...

Introduction Despite their prevalence and contrary to what IT people might have you believe, computers will never take the place of humans. The reason is simple - they can't think for themselves. If you doubt this assertion, try using language translation...

Introduction In ING Baring Securities (Hong Kong) Ltd v Commissioner of Inland Revenue FACV 11 of 2006 (5 October 2007) the Court of Final Appeal (CFA) gave the taxpayer the biggest victory since the Hang Seng Bank case in 1989, re-affirming that source...

A Renaissance for Trust Related Products in Asia? The use of offshore companies in Asia is no longer restricted to listed companies and international investment houses. More and more, individuals are incorporating BVI companies to hold their own personal...

Introduction Given that this is an article for the Hong Kong Lawyer , it obviously makes sense to reflect on something related to the law. But analyses of legal developments are staple articles in this journal, and a 'new year' theme is probably not...

It gives me great pleasure to be here  this morning to open this important Conference on Mediation in Hong Kong.  This Conference represents a unique collective effort by eight major stakeholders from both the private and public sectors...