 |  |
|
 |
 |
 |
 |
|  | |  | |
(c)
The nature of the proposed reform
Interim relief of the type proposed is "intended to hold the position until a judgment
comes into existence."
It is relief :-
"granted to facilitate the process of execution or enforcement which will arise when, but only
when, the judgment for payment of an amount of money has been obtained. The court is
looking ahead to that stage, and taking steps designed to ensure that the defendant cannot
defeat the purpose of the judgment by thwarting in advance the efficacy of the process by
which the court will enforce compliance."
Accordingly, such interim relief will only make sense where the foreign proceedings
in question will potentially lead to a judgment or an arbitral award which can, in the
ordinary course, be enforced in Hong Kong whether by registration or at common law.
Such enforceability must be the first defining requirement of any such reform.
It is
in this context that the Bar Association's concern about the possibility of a foreign
court's exorbitant assumption of jurisdiction or making of orders which it would be
contrary to public policy to enforce, may be met. Such foreign judgments are
impeachable
and would therefore not found either enforcement or the interim
jurisdiction.
Notes
Per Lord Mustill in the Leiduck case, at 299.
Per Lord Nicholls, ibid, at 306
This was the foundation of Lord Nicholls's approach: ibid, at 306-7 and 310: "The boundary line of
the Mareva jurisdiction is to be drawn so as to include prospective foreign judgments which will be
recognised and enforceable in the Hong Kong courts."
See Dicey & Morris, The Conflict of Laws, 13th Ed, 14R-118 and 14R-141.
|
 |
|