The Hong Kong Government plans to conclude an arrangement with the Macao Special Administrative Region for the mutual service of judicial documents in civil and commercial cases in December 2017.
The proposed arrangement is designed to overcome existing limitations in the current civil procedure rules (namely the Rules of the High Court (Cap. 4A) and the Rules of the District Court (Cap. 336H)) which has resulted in Hong Kong litigants only being able to rely on private means to effect service on persons in Macao. The proposal will designate authorities in each jurisdiction which will be able to request service by, or perform service for, the counterpart authority.
Existing Mechanism
The existing rules provide mechanisms for service on persons in Mainland China or other countries by way of the judicial authorities of China or the relevant country. However, for the purposes of the rules, Macao is neither part of Mainland China nor a 'country'. As a result, there exists no formal mechanism governing the service of judicial documents from Hong Kong on persons located in Macao. This results in Hong Kong litigants having to rely on private channels to serve documents, for example by engaging lawyers to service documents there (which is potentially subject to legal challenge before the Court).
Proposed Arrangement
To respond to this lack and to minimize the risk of legal challenges, an arrangement has been proposed to allow designated authorities in Hong Kong and Macao to transmit and execute requests for service of documents in civil or commercial proceedings.
The proposed arrangement reportedly largely follows the existing arrangement between Hong Kong and Mainland China, which can be found here for reference. Broadly speaking, it will designate an authority in each of Hong Kong and Macao, respectively the Hong Kong High Court and the Macao Tribunal de Ultima Instancia, which will be able to request service of, or perform service for, the other authority. It will also provide for associated details such as the process for requesting and effecting service and the granting of immunities that will apply to the authority performing service.
Once signed, the proposed arrangement will provide certainty and ensure efficiency in the service of judicial documents in civil and commercial cases between Hong Kong and Macao.
The Hong Kong Government plans to sign the arrangement in December 2017, following which a copy of the arrangement will be published on the Department of Justice's website.
If you wish to discuss, please contact Gareth Thomas, Dominic Geiser or your usual Herbert Smith Freehills contact.
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