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Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one court may take jurisdiction over the case.
2019年6月25日 · The exclusivity of a jurisdiction clause is a question of law to be determined by the relevant court with reference to the construction of the real meaning of the clause. It is reaffirmed in Huang that the jurisdiction clause should be construed in accordance with the governing law of the contract.
- Facts
- Appeal
- Stay
- Was The EJC triggered?
- An EJC’s Effect on Insolvency Proceedings
- Conclusion
- Way Forward
A loan agreement (Agreement), entered into between a secured creditor (petitioner) and the debtor (appellant), contained an EJC that each party would submit to the exclusive jurisdiction of the courts in New York “for the purposes of all legal proceedings arising out of or relating to this Loan Agreement”. On the basis of an alleged event of defaul...
On appeal, the Court of Appeal was asked to determine whether the petition should have been dismissed or stayed. The appellant argued that Linda Chan J should have dismissed the petition by applying Harris J’s approach in Re Southwest Pacific Bauxite (HK) Ltd [2018] HKFI 426 (Lasmos approach). The Lasmos approach provides that a winding-up petition...
In relation to issue (1), the Court of Appeal confirmed that a stay of proceedings would only be refused where the debtor had no arguable defence. This is in contradistinction to the merits of the creditor’s case – even if the creditor were highly likely to succeed, the merits of the creditor’s case should be neither relevant nor significant in det...
With regard to issue (3), the creditor argued that a petition was not a legal proceeding and so the EJC was not triggered. The Court of Appeal disagreed, and held that in deciding on the petition the court must necessarily determine the dispute and decide whether the appellant’s cross-claims had substance. That by itself would amount to a judicial ...
On issue (4), the Court of Appeal held that the same approach as in ordinary actions should be adopted to respect party autonomy. Even in the context of insolvencies, an EJC should ordinarily be given effect unless there are strong reasons to the contrary. However, to retain flexibility, the Court of Appeal was reluctant to define what may constitu...
Bankruptcy and winding-up petitions are a class remedy. If there is any dispute as to the debt, an EJC would usually be upheld and the courts in Hong Kong would be likely to grant a stay or dismiss the petition even where the merits of that dispute were weak. This is to avoid the anomalous situation of conducting a summary judgment type determinati...
Where creditors intend to commence insolvency proceedings in Hong Kong, despite the existence of an EJC excluding Hong Kong, creditors should first check if the wording is wide enough to cover all legal proceedings. If the wording covers insolvency proceedings, creditors should then take extra care to ensure that the debtor would not dispute the de...
Second, the tribunal has exclusive jurisdiction to determine the question of obscenity or indecency when the issue arises in any civil or criminal proceedings in any court. The Obscene Articles Tribunal consists of a full-time Magistrate and two or more lay adjudicators.
2009年1月7日 · Non-exclusive jurisdiction clauses are common provisions in contracts. Typically, they allow the parties to agree to submit any dispute arising from the contract to a particular...
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What is the difference between exclusive jurisdiction and concurrent jurisdiction?
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What is the difference between exclusive jurisdiction and exclusive jurisdiction?
What is the exclusivity of a jurisdiction clause?
An asymmetric exclusive jurisdiction clause allows lenders to pursue claims against the borrower before courts of competent jurisdiction (whether in Hong Kong or overseas), whilst limiting the borrower's submission to the exclusive jurisdiction of Hong Kong court.
Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity.
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