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Arrangement between the Mainland and Hong Kong SAR concerning Mutual Recognition and Enforcement of Judgments of Civil and Commercial
Cases under the Jurisdiction as Agreed to by the Parties Concerned
July 14, 2007
In accordance with Article 95 of the Basic Law of Hong Kong SAR of the People’s Republic of China, the following arrangement is made
as follows concerning the issues related to recognition and enforcement of judgments on civil and commercial cases under the contractual
jurisdiction by the parties concerned, upon the consultation between the Supreme People’s Court and the Government of Hong Kong SAR.
Article 1
As for an enforceable final judgment made by a people’s court of the Mainland or by a court of Hong Kong SAR concerning a civil and
commercial case under the written contractual jurisdiction, in which payment must be made, the party concerned may, under the present
Arrangement, apply to the people’s court of the Mainland or the court of Hong Kong SAR for recognition and enforcement.
Article 2
The term “enforceable final judgment” as mentioned in the present Arrangement refers to,
(1)
in the Mainland,
(a)
judgments of the Supreme People’s Court; and
(b)
judgments of the first instance as made by the higher people’s courts, intermediate people’s courts, or authorized grassroots people’s
courts having jurisdiction over the civil and commercial cases of the first instance which involve the interests of a foreign country,
Hong Kong, Macao or Taiwan (for the name list, please see attachment), regarding which no appeal is permitted by law or no appeal
is made within the statutory term, judgments of the second instance, and effective judgments as made by the people’s court at the
higher level in light of the procedure of trial supervision after it brought the cases up for trial.
(2)
in Hong Kong SAR, effective judgments made by the Court of Final Appeal, by the Court of Appeal or the Court of First Instance of
the High Court, or by district courts.
The term “judgments” as mentioned in the present Arrangement shall include, in the Mainland, judgments, rulings in written form, conciliation
statements and orders of payment, and in Hong Kong SAR, the judgments, orders and legal cost assessment certificates.
Where, after a party concerned applies to the court of Hong Kong SAR for recognition and enforcement of a judgment, the people’s court
of the Mainland retries the case under law, the people’s court at the higher level that makes the effective judgment shall bring
the case up for post-final retrial.
Article 3
The term “written agreement on jurisdiction” as mentioned in the present Arrangement shall refer to the agreements as clearly stipulated
in written form by the parties concerned that the people’s court of the Mainland or the court of Hong Kong SAR has the sole jurisdiction
as of the effectiveness of the present Arrangement, so as to settle the disputes relevant to a certain legal relationship that has
either arisen or might arise,.
The term “certain legal relationship” as mentioned in the present Article refers to the civil or commercial contracts between the
parties concerned, excluding the employment contracts or the contracts under which a natural person is a party due to individual
consumption, family matters or any other non-commercial reasons.
The term “written form” as mentioned in the present Article refers to the form which may materially manifest the contents and may
be obtained for future reference, such as the contract, letter or data message (including telegraph, telex, fax, electronic data
interchange or e-mail) and etc..
The written agreement on jurisdiction may consist of one or several written forms. Unless it is otherwise prescribed in the contract,
the clauses in the agreement on jurisdiction in the contract shall be independent, and the modification, rescission, termination
or invalidation of the contract may not affect the effectiveness of the clause of agreement on jurisdiction.
Article 4
As for the recognition and enforcement of a civil or commercial judgment, conforming to the present Arrangement, an application shall
be provided to the intermediate people’s court at the respondent’s domicile or habitual residence or the locality of property in
the case of the Mainland, or to the High Court of Hong Kong SAR in the case of Hong Kong SAR.
Article 5
If the respondent’s domicile or habitual residence or the locality of property covers the jurisdictions of different intermediate
people’s courts of the Mainland, the proposer shall choose one people’s court to file the application for recognition and enforcement,
instead of filing applications separately to two or more people’s courts. Where the respondent’s domicile or habitual residence or
the locality of property is both in the Mainland and in the Hong Kong SAR, the proposer may simultaneously file separate applications
to the courts of the two regions, and the total amount separately enforced by the courts of the two regions on the basis of the judgment
may not exceed the amount determined in the foresaid judgment. The court which has partially or totally enforced the judgment shall,
when required by the other court, submit the information on its enforcement of the judgment.
Article 6
If a proposer applies for the recognition and enforcement of a judgment, it shall submit the following documents:
(1)
an application letter requesting for recognition and enforcement;
(2)
a counterpart of the judgment affixed with the seal of the court which has made the final judgment;
(3)
a certificate as issued by the court having made the final judgment, which proves that the judgment is a final judgment in accordance
with Article 2 of the present Arrangement and is enforceable at the locality where the judgment was made;
(4)
identity certificating materials:
(a)
If the proposer is a natural person, he shall submit his identity card or the notarized photocopy of his identity card;
(b)
If the proposer is a legal person or other organization, it shall submit a photocopy of its notarized registration certificate;
(c)
If the proposer is a legal person or other organization of a foreign nationality, it shall submit corresponding notarized or certified
materials.
If there is no Chinese text for the documents submitted to a people’s court of the Mainland, the proposer shall in addition submit
a Chinese translation which proves to be inerrable.
The court at the locality of enforcement needn’t separately require notarization of the certificate as issued by the court prescribed
in the present Article.
Article 7
In the application letter for recognition and enforcement of a judgment, the following items shall be stated:
(1)
the name and domicile of the party concerned in the case of is a natural person; or the name and domicile of the party concerned in
the case of a legal person or other organization, as well as the name, position and domicile of its legal representative or principal
person-in-charge;
(2)
the ground for applying for enforcement and the contents of the claim, the locality of the respondent’s properties and the property
status;
(3)
whether or not an application for enforcement of the judgment is filed at the locality of the court of the first instance, and the
condition on the enforcement.
Article 8
The procedures for the proposer to apply for recognition and enforcement of the judgment of a people’s court of the Mainland or a
court in Hong Kong SAR shall be subject to the laws at the locality of enforcement, unless it is otherwise prescribed in the present
Arrangement.
The term for the proposer to apply for recognition and enforcement shall be one year if both parties are natural persons or either
party is a natural person, and shall be six months if both parties are legal persons or other organizations.
The term as provided for in the preceding paragraph shall, if the application for enforcement of a judgment of the Mainland is filed
in Hong Kong SAR, be calculated as of the last day of the execution period provided for in the judgment, or shall, if the judgment
requires execution by stages, be calculated as of the last day of each required execution period; and the term shall, if the application
for enforcement of a judgment of Hong Kong SAR is filed in the Mainland, be calculated as of the date when the judgment may be enforced
compulsorily, with the date being the adjudication date as indicated in the judgment, or shall, if the judgment otherwise requires
the time limit for enforcement, be calculated as of the expiry of the required term for enforcement.
Article 9
As for a judgment under application for recognition and enforcement, if the debtor in the judgment of the first instance provides
evidence proving any of the following circumstances, the court accepting the application shall, after examination and verification,
rule not to recognize and enforce the judgment:
(1)
The agreement on jurisdiction is ineffective according to the laws of the locality of the court of the first instance as chosen by
the parties concerned by agreement, except that the chosen court has ruled that the agreement on jurisdiction is effective;
(2)
The judgment has been fully enforced;
(3)
The court at the locality of enforcement has exclusive jurisdiction over the case according to the laws of the locality of enforcement;
(4)
According to the laws of the locality of the court of the first instance, the lawsuit-losing party due to absence from court has not
been lawfully summoned, or does not obtain the legally described time for making argument despite of lawful summon. However, the
service by public announcement of the court of the first instance under laws or relevant provisions does not fall within the foresaid
circumstances;
(5)
The judgment is obtained by fraud; or
(6)
The court at the locality of enforcement makes a judgment based on the same litigation claim, or the court of a foreign country or
overseas region makes a judgment based on the same litigation claim, or the relevant arbitration institution has made a arbitral
award which has been recognized or enforced by the court at the locality of enforcement.
If a people’s court of the Mainland considers that the enforcement of a judgment by the court of Hong Kong SAR in the Mainland may
violate the public interests of the Mainland, or a court of Hong Kong SAR considers that the enforcement of a judgment by the people’s
court of the Mainland in Hong Kong SAR may violate the public policies of Hong Kong SAR, the judgment may not be recognized or enforced.
Article 10
As to the judgment made by a court of Hong Kong SAR, if the debtor adjudged therein has appealed, or the appellate procedures have
not been finalized, the people’s court of the Mainland may, after examination and verification, suspend the procedures for recognition
and enforcement. If the original judgment is totally or partially kept after the appeal, the procedures for recognition and enforcement
shall be resumed; if the original judgment is completely changed, the procedures for recognition and enforcement shall be terminated.
If the local people’s court of the Mainland rules to bring the case up for retrial in light of the procedures for trial supervision
regarding the rendered judgment, or the Supreme People’s Court rules to make a post-final retrial, the court of Hong Kong SAR may,
after examination and verification, suspend the procedures for recognition and enforcement. If the judgment of post-final retrial
keeps the original judgment totally or partially, the procedures for recognition and enforcement shall be resumed; however, if the
judgment of the post-final retrial completely changes the original judgment, the procedures for recognition and enforcement shall
be terminated.
Article 11
The judgment recognized according to the present Arrangement shall have the same effectiveness with that of the judgment made by
the court at the locality of enforcement.
Article 12
If a party concerned is dissatisfied with the ruling on whether or not to recognize and enforce a judgment, it may apply to the people’s
court at the next higher level for reconsideration in the case of the Mainland, or may appeal in accordance with its legal provisions
in the case of Hong Kong SAR.
Article 13
Where, during the term when a court accepts the application of a party concerned for recognition and enforcement of a judgment, the
party concerned additionally brings a lawsuit on the same facts, the court shall not accept it.
As to a recognized and enforced judgment, if a party concerned brings a lawsuit again on the same facts, the court shall not accept
it.
As to a judgment not recognized and enforced according to Article 9 of the present Arrangement, the proposer may not file an application
for recognition and enforcement again. However, it may bring a lawsuit with the court at the locality of enforcement in accordance
with the laws of the locality of enforcement on the same facts of the case.
Article 14
A court may, before or after accepting an application for recognition and enforcement of a judgment, apply the provisions of the
laws at the locality of enforcement on property preservation or on prohibition of assets transfer, and take preservation or compulsory
measures on the respondent’s properties upon the proposer’s application.
Article 15
When applying to a relevant court for enforcement of a judgment, the party concerned shall pay the enforcement fees or court fees
according to laws and provisions of the locality of enforcement on litigation fee charges.
Article 16
The scope of subject matters for mutual recognition and enforcement between a court of the Mainland and a court of Hong Kong SAR
shall, in addition to the amount determined in the judgment, include the interests payable under the certain judgment, the retaining
fees adjudged by the court and the legal fare, excluding taxes and fines. In Hong Kong SAR, the term “legal fare” shall refer to
the litigation fee charges payable as adjudged or ordered by the judge or registrar in the legal cost assessment certificate.
Article 17
The present Arrangement shall apply to the judgments made by the courts of the Mainland and those of Hong Kong SAR as of the effectiveness
day of the present Arrangement (including today).
Article 18
Where any problem is met or any amendment needs to make during the process of implementation of the present Arrangement, the relevant
matters shall be resolved by the Supreme People’s Court and the Government of Hong Kong SAR through consultation.
Article 19
After the judicial interpretation of the present Arrangement has been promulgated by the Supreme People’s Court of the Mainland and
the relevant legal procedures have been amended in Hong Kong SAR, the effectiveness day shall be promulgated by both parties and
the present Arrangement shall be enforced.
The present Arrangement was subscribed in Hong Kong on July 14, 2006 in duplicate.
The Supreme People’s CourtHong Kong SAR
Vice PresidentSecretary of Justice
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