State Immunity

Hong Kong

Declaring in an explanatory note that the question of state immunity "directly impacts on a country's relations with foreign countries", the NPC Standing Committee adopted, by a unanimous vote, an interpretation of Articles 13 and 19 of the Hong Kong Basic Law in the fist case in which Hong Kong's top court sought such an interpretation from Beijing. The interpretation applied the absolute immunity doctrine to Hong Kong and underscores that "[s]ince state immunity falls in the domain of a country's foreign affairs, it is up to the central government to make decisions about the policy, which should be applied universally within the territory of the People's Republic of China," Later, Hong Kong's Court of Final Appeal finalised its judgment in the case on the basis of the interpretation.

State Immunity

Hong Kong

Hong Kong's Court of Final Appeal embraced the absolute immunity doctrine which the PRC Government adheres to in a case against the Democratic Republic of the Congo, subject to four questions of the Basic Law relating to state immunity which the Court submitted to the national legislature for interpretation.

State Immunity

Hong Kong

As the case of a US vulture fund against the Democratic Republic of the Congo reached the Hong Kong Court of Final Appeal, the disputed debt of US$104 million was overshadowed by the claim made in letters from the Foreign Ministry to Hong Kong courts that "China considers the issue of state immunity an important issue which affects relations between states" and that Hong Kong's embrace of the restrictive immunity doctrine would prejudice China's sovereignty. Some commentators also made alarmist remarks such as "no central government can survive if one of its components is singing a different tune", as if there were death penalty for a state if its regions breach international law. The Hong Kong Government, intervening in the case, argued that the issue of state immunity is part of Hong Kong's foreign affairs on which Hong Kong courts must follow Beijing's approach and maintain "one state, one immunity". The Government and the defendants in the case agreed that Hong Kong courts should not follow English common law on restrictive immunity which they said had been displaced by the Basic Law, and called for the court to ask for an interpretation from the national legislature on Article 13 of the Basic Law dealing with Hong Kong's foreign affairs. Lawyers for the plaintiff argued against the court seeking the interpretation, suggesting that Beijing could decide on Hong Kong's state immunity law by enacting a national law that applies to Hong Kong. They claimed that Hong Kong's return to the "legal dark ages" of absolute immunity would damage Hong Kong's reputation as an international financial centre.

State Immunity

Hong Kong

Hong Kong's highest court will hear the appeal in the case raising the application of restrictive immunity doctrine in Hong Kong and may consider referring the matter to the national legislature for its interpretation.

State Immunity

Hong Kong

Hong Kong's Court of Appeal allowed leave to appeal to the Court of Final Appeal in the case that raised the question of state immunity. The Court of Appeal had held that the doctrine of restrictive immunity still applied in Hong Kong, saying, ""There is no suggestion in the evidence that the maintenance of the common law of restrictive immunity would prejudice the sovereignty of the PRC."

State Immunity

Hong Kong

The Hong Kong Court of Appeal upheld a claim by the US firm of FG Hemisphere against China Railway that arose from debts owed by the government of the Democratic Republic of Congo. At issue was whether Congo enjoyed state immunity before the Hong Kong court, for which the Department of Justice of Hong Kong intervened and produced a letter from China's Foreign Ministry to the Hong Kong Government, stating, "The courts in China have no jurisdiction over, nor in practice have they ever entertained, any case in which a foreign state or government is sued as a defendant or any claim involving the property of any foreign state or government. ... At the same time, China has never accepted any foreign courts having jurisdiction over cases in which the state or government of China is sued as a defendant, or cases involving the property of the state or government of China. This principled position held by the government of China is unequivocal and consistent." The Hong Kong court, however, rejected the defendants' argument that Hong Kong courts had no jurisdiction, given that the territory's autonomy does not extend to foreign affairs, and held that "the doctrine of restrictive immunity currently continues to apply in Hong Kong".