13 August, 2015
Welcome to the first of a 15 part series on Shipping & International Trade Law in Hong Kong.
Since the handover of sovereignty by the United Kingdom to the People’s Republic of China on 1 July 1997, Hong Kong has operated under the Basic Law, which has been described as a ‘mini-constitution’ for the region. The Basic Law provides for the underlying principle of ‘one country, two systems’. A key feature of this principle is that the socialist system and policies of the PRC are not and will not be practised in Hong Kong, and the previous capitalist system is to stay unchanged for 50 years. Part and parcel of that is the maintenance of all the laws previously in force in Hong Kong before the handover, including the common law, the rules of equity, statutes, subordinate legislation and Chinese (pre-revolution, Qing Dynasty) customary law – provided that they do not contravene the Basic Law and legislation enacted by the legislature of Hong Kong.
As a result, Hong Kong’s shipping and international trade law has been largely unaltered by the handover. Furthermore, a hallmark of the common law system is growth and evolution through judicial decisions, and it is not the case that Hong Kong’s common law became ‘frozen’ as from 1 July 1997. In fact, even after the handover, the Hong Kong courts continue to derive assistance from overseas jurisprudence, including the decisions of final appellate courts in various common law jurisdictions as well as decisions of supra-national courts (Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at ). In particular, due to Hong Kong’s legal system having its origins in the British legal system, the decisions of the English Privy Council and the House of Lords (now Supreme Court) are to be treated with ‘great respect’ by the Hong Kong Courts (Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at ).
Therefore not only has Hong Kong’s shipping and international trade law been preserved after 1997, its judicial development has continued to be influenced by other jurisdictions (especially common law jurisdictions). Accordingly, for this chapter reference will be made to English and other common law authorities, as the Hong Kong courts themselves do in practice. As such, there will inevitably be some degree of overlap with this work’s chapter on England & Wales.
One main area in which Hong Kong law has not developed in line with English law is where international/treaty law is involved. This effect has been especially pronounced in circumstances where English law has changed as a result of the United Kingdom’s EU membership. Hong Kong judges obviously cannot ‘import’ treaties into Hong Kong law where Hong Kong has not ratified those treaties, simply out of the desire to follow English precedents. Though they are few and far in between, there are several examples of this issue leading to Hong Kong law diverging from English law.
This material was first published by Sweet & Maxwell in 2014 in “Shipping and International Trade Law – International Comparisons” (and is reproduced here by agreement with the Publishers)
Shipping & International Trade Law
2. Contracts Of Carriage
3. Liability Regimes And Lien Rights
6. General Average
8. Pollution And The Environment
9. Security And Arrest
10. Contracts Of Sale Of Goods.
11. Contracts Of Sale Of Goods Part 2, General Formalities
For further information, please contact:
Damien Laracy, Partner, Laracy & Co in association with Hill Dickinson Hong Kong LLP
Mike Mallin, Partner, Hill Dickinson Hong Kong LLP in association with Laracy & Co
Michael Ng, Laracy & Co in association with Hill Dickinson Hong Kong LLP