Cross-border dispute resolution: comparison between England and Wales, and Hong Kong

Hong Kong is one of the largest overseas destination for solicitors of England and Wales. It's a major financial hub and an attractive market for businesses.

Our joint event held panel discussions with the LSHK to share best practice and knowledge on a global level.

Expert speakers focused on issues affecting practitioners enforcing cases across borders, such as:

• the impact of Brexit on competition law disputes
• using English law when arbitrating in Hong Kong
• developments in Hong Kong law on foreign insolvency cases
• mechanisms of resolution in competition disputes between Hong Kong, China, and England and Wales

Brexit’s impact on competition law disputes

Whether competition law can be dealt with through arbitration has developed independently, jurisdiction to jurisdiction.

Matters of public interest and public policy have been important considerations in working out how competition law disputes can be resolved. Under English law such disputes are arbitrable, but in Hong Kong they're not.

Brexit could result in changes in regulatory activity, where larger cases that were previously handled in Europe now become international. The withdrawal agreement will mean cases continue in Europe for some time yet, however.

Using English law and arbitrating in Hong Kong

Arbitration has become more popular in recent times, chosen over litigation, particularly in solving cross-border disputes.

In practice, different legal systems can govern different aspects of international arbitration. Most parties will choose the law that governs the contract in these cases.

Details of which law will be applied in a case are usually included in the original contract clauses, and lawyers will often work together on this to find ways for the different laws to complement each other.

Parties may prefer English law to govern contracts, due to the fairness English law provides. This offers legal certainty and party autonomy.

English law is frequently the dominant choice of substantive law used in maritime and commercial contracts, for example, and is usually preferred due to its consistency and fairness.

English law also has global reach due to its historical background. This sits well with Hong Kong’s well known and respected arbitration forums, as it provides neutrality.

The positions of Hong Kong’s and England and Wales’ arbitration courts will differ, however, as arbitration law issues vary across jurisdictions.

For more on this topic, watch the webinar recording of our recent discussion with the LSHK on cross-border dispute resolution and women in law (recorded in July 2021).