Does the “good arguable case” test apply in Mareva applications under the new s 21M of the High Court Ordinance (“HCO”)?

Section 21M HCO (Cap 4), and the related provision of s 21N HCO, were introduced under the Civil Justice Reform (CJR) in April 2009. The new provisions have given the Hong Kong courts the power to grant interim relief, including interim injunctions, in Hong Kong in aid of substantive proceedings commenced abroad, even where there are no such proceedings on foot in Hong Kong.

In making the recommendations that led to the drafting and enactment of the section, the CJR Working Party considered the jurisprudence relating to s 25 Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”), which has now been extended in England and Wales to apply to non-Convention countries, and which is similar in terms to ss 21M and 21N HCO. It concluded amongst other things, and relying primarily on a passage of Morritt LJ from Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, that the court’s proper approach was to first consider “whether the facts would warrant the relief sought if the substantive proceedings were brought in England” before moving on to ask whether it is “inexpedient” to grant the relief sought (para 358(a) Final Report of the CJR Working Party).

This alerter addresses how this test may be applied in relation to applications for interlocutory injunctions under s 21M HCO, and in particular the question of whether and in what situations the court will inquire into the merits of the plaintiff’s case. We hope to demonstrate two things: First, while the approach set out above is by and large correct, English case law and commentary shows that the English courts have, when acting as an ancillary court, only considered the underlying merits of an action in two specific situations; secondly, that in any event there is no good reason – particularly in relation to such applications – to interpret s 21M HCO as requiring an inquiry into the merits in all cases where an interim injunction is sought under the provision.

CJR Alerter: For full view of this article subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 17 CJRA.

Keeping abreast of key case authorities relevant to the CJR from other jurisdictions

It is important for practitioners to monitor very closely decisions by the Hong Kong judiciary as to the interpretation and application of the new and amended provisions in the High Court and District Court Rules. Practitioners must also stay alert to useful and important decisions under equivalent provisions in other jurisdictions, in particular the UK. In this issue we consider the UK decision of Bray t/a The Building Company v Bishop (English unrep., 19 June 2009) in the context of sanctioned offers and payments in Hong Kong.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

 

This article is available in [2009] 7 CJRA.

Sweet & Maxwell Video Blog: International Chamber of Commerce and Arbitration in Hong Kong

Andrew Aglionby, Partner and Head of International Arbitration in the Asia-Pacific Region, at Baker & McKenzie, gives his views on the use of the International Chamber of Commerce (ICC) in Hong Kong, and what that means for the region.

Baker & McKenzie律師事務所合夥人暨亞太區國際仲裁業務主管Andrew Aglionby，將於本影片中發表個人見解，講述就國際商會在香港之功能，以及中心對亞太區重要之處。

Baker & McKenzie律师事务所合伙人暨亚太区国际仲裁业务主管Andrew Aglionby，将于本影片中犮表个人见解，讲述国际商会在香港的功能，以及中心对亚太区重要之处。