Legal disputes involving a foreign element create three fundamental questions. First, whether the courts of a forum have jurisdiction on the dispute. Second, if they have jurisdiction, whether foreign law(s) may or should be taken into account in order to resolve the dispute in question. Third, whether foreign judgments are to be recognised and enforced. These questions arise routinely in commercial affairs, claims in tort, marriage and divorce disputes, inheritance, wills and rights with respect of movable and immovable property. International contracts almost invariably pose the questions of jurisdiction and applicable law. Commercial arbitration poses one additional question: which law applies to the arbitration proceedings. 

Every legal system has given answers to these questions but the answers are not always the same. The course provides students with a practical and legal background to the nature, scope and rules of Hong Kong’s private international law (for the purposes of this course private international law is understood as conflict of laws) with emphasis on the issues arising in commercial disputes and arbitration. The course will cover issues of jurisdiction, choice of law, proof of foreign law, jurisdiction of arbitral tribunal, enforcement of arbitral awards and foreign judgements. The law of Hong Kong will be compared with that of other jurisdictions to enable students to gain an understanding of the various solutions developed around the world. Technology, particularly transactions online and on the “cloud”, automated (smart) contracts, torts committed online and the location of online assets, all pose challenges to the adopted solutions for private international law issues. This is because the elements connecting a court with a particular dispute are not as easy to identify as under commercial practices predating the development of each type of technology. The course will discuss these issues and the way solutions are being developed.