By Paul Harris SC,
In an ever more globalized world private international law, commonly referred to as conflict of laws, becomes steadily more important. In the law of England and Wales much private international law is at present governed by European Union law, namely the Rome I and Rome II Regulations (Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome 1) and Regulation (EC) 864 2007 on the law applicable to non-contractual obligations (Rome 11)). It remains to be seen whether, in the event that Brexit actually happens, these regulations will be replicated in future English law. The rules they embody are on the whole not controversial, and as these rules will continue to be used in the 27 remaining EU countries, it would seem logical to continue to use them in the UK by continuing their incorporation into English law.
Conflict of laws is a particularly important aspect of the law in Hong Kong. Under the “One Country, Two systems” arrangement, whereby Hong Kong is a Special Administrative Region of the People’s Republic of China, English common law remains the common law of Hong Kong, and statutes and regulations enacted before Hong Kong returned to China in 1997 remain in force unless specifically repealed (see Basic Law of the Hong Kong Special Administrative Region, Articles 8 and 18). Hong Kong is a relatively small territory in physical terms (about the size of Greater London in area) but a world financial and trading hub with links with every part of the world. A high proportion of the commercial cases which come before the Hong Kong courts therefore have an international element. So do many other cases (e.g. involving family, inheritance, employment or personal injury). In this context it also has to be borne in mind that the increasing number of cases involving both Hong Kong and Mainland China are in this context international cases, since although Hong Kong and Mainland China are now one country, they are two different legal jurisdictions. Taiwan is regarded by the People’s Republic of China as a rebel province, regards itself as the true government of China ( or increasingly in practice as an independent country), but in Hong Kong law is uncontroversially treated as an independent legal jurisdiction to which the usual rules of conflicts of laws apply.
The Rome 1 and Rome 11 Regulations were enacted after Hong Kong had already returned to Chinese sovereignty and so have never had any application to Hong Kong. Hong Kong private international law is therefore governed by older English common law rules, together with more recent Hong Kong judicial precedents. For detailed exposition of those older rules in the context of Hong Kong legislation it is necessary to refer to older editions of the standard English texts, Dicey, Morris & Collins on Conflict of Laws, and North’s Private International Law. However the Hong Kong courts arguably tend to adopt – in my view rightly- a somewhat more practical and pragmatic approach to conflict of laws issues than the higher English courts have sometimes done in the past. It is therefore rarely appropriate to enter into complex academic issues (such as differing views of the doctrine of renvoi) when arguing a conflict of laws case in Hong Kong. I would cautiously hope that “The Conflict of Laws in Hong Kong”, originally written by Graeme Johnston and currently edited by me, will be a sufficient guide to the subject for most practitioners.
The Conflict of Laws in Hong Kong by Graeme Johnstone, 3rd edition (2017) by Paul Harris SC, is published by Sweet and Maxwell.