Hong Kong is setting up a new Hong Kong International Commercial Court (“HKICC”) as a specialist division of its High Court, with a mandate to hear complex, high value international and cross border commercial disputes. The initiative is intended to strengthen Hong Kong’s position as both an international financial centre and a leading dispute resolution hub within the “one country, two systems” framework.
Structure and Jurisdiction of the HKICC in Hong Kong Courts
The High Court, which consists of the Court of Appeal and the Court of First Instance, is the second highest court of Hong Kong and has unlimited civil and criminal jurisdiction. It commonly hears most major commercial disputes at first instance. The new HKICC will be a specialist division (or “list”) within this High Court structure will not become a separate court on its own.
Within the Court of First Instance, certain categories of case are managed through specialist lists, such as the Commercial List, the Personal Injury List, the Construction and Arbitration List, the Intellectual Property List and the Constitutional and Administrative Law List. A list is not a separate court but a managed docket of cases of a particular type which are overseen by specialist judges with relevant expertise and which operate under tailored practice directions and procedures. Judges in charge of these lists have a high degree of procedural autonomy, so they can adjust case management and even modify the usual rules of court for that list in order to deal more effectively with the kinds of disputes that arise there.
How the HKICC Streamlines Cross-Border Commercial Disputes
The HKICC is designed to play a similar specialist role but with an express focus on international and cross border commercial disputes that involve complex facts and legal issues and that are of high value. It will draw on the existing High Court Ordinance and Rules of the High Court, and a dedicated Practice Direction will set out which cases may be brought there and how they will be managed so that procedures can be streamlined and appeals handled flexibly. Local judges with substantial commercial law experience will sit in the court, and eminent senior judges or practitioners from other common law jurisdictions may be invited on an ad hoc basis, with assessors or experts assisting in specialized areas where appropriate.
The court is intended to complement arbitration and mediation rather than displace them, so parties will have a wider range of dispute resolution choices when drafting jurisdiction clauses. It will offer features associated with court litigation, such as public hearings, reasoned and authoritative judgments, a structured appellate path and the certainty of enforceable decisions, including the prospect of recognition and enforcement on the Mainland under existing mutual arrangements. A floor in the High Court Building will be designated for the HKICC and the Judiciary plans extensive use of technology, including remote hearings, electronic filing, electronic bundles and voice to text transcription, in order to handle international cases efficiently.
For foreign lawyers, the creation of this specialist forum signals that Hong Kong is investing further in high end commercial dispute resolution under a common law system while maintaining close connections to Mainland China. It offers an additional option for parties who want the transparency and precedent value of court judgments but who also see Hong Kong as a gateway for enforcement and for transactions that connect international investors with Mainland counterparties.
What remains to be clarified
The Judiciary aims to bring the HKICC into operation within the coming year, and it has said that it will consult stakeholders, in particular the legal profession, as it finalises the Practice Direction and detailed procedures. The announcement confirms that judges will be experienced commercial judges from Hong Kong with the possibility of overseas common law judges sitting ad hoc, but it does not yet publish a specific roster of HKICC judges. As these details emerge, practitioners who draft cross border contracts that use Hong Kong law will want to consider when it may be appropriate to specify the HKICC in jurisdiction clauses, and how that choice should sit alongside existing preferences for arbitration seated in Hong Kong.
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